Charges Dropped, Cleared by TIX, and Legislation supporting due process investigations
Rensselaer Polytechnic has a reputation for guilt presuming sex policies and immoral treatment of Title IX accused males. RPI has settled before with a falsely accused male student. Here is RPI’s 2018 settlement.
As always, thanks to KC Johnson. Alice
When the Sixth Circuit ruled in Doe v. Baum, following up on its decision in Doe v. University of Cincinnati, the law appeared settled: The male students accused of sexual misconduct were entitled to cross-examination in Title IX sexual misconduct proceedings. Problem solved, right? So why then didn’t the University of Michigan’s president get the message? In its desire to be a mecca of political correctness, the University of Michigan continues to prioritize the rights of some students over others. And that does not fly in the courts, thanks to the U.S. Constitution, which demands free expression and due process for everyone. UM’s resistance to ensuring its codes of conduct abide by that framework keep landing the university in court.
Recently, federal judge Arthur Tarnow ruled that the University of Michigan violated the due process rights of a student accused of sexual misconduct when it denied him a hearing with the opportunity to cross-examine his accuser. Judge Tarnow, who has been very pointed in his criticism of the way U-M handles sexual misconduct cases, went a step further, saying he doesn’t trust U-M to follow through on making sure accused students get the due process hearings they are entitled to…While Michigan didn’t want to appear not to comply, it simultaneously chose not to comply because, well, it didn’t want to. It didn’t agree, as if this is a debate between peers with the Sixth Circuit (and Judge Tarnow) on one side and UM president Schlissel on the other, both sides being entitled to their own opinion and, therefore, entitled to agree to disagree and go about their lives doing what they believe to be the right thing.
As more suits are brought, more rulings obtained, holding that campus sex tribunals involve unconstitutional deprivations of due process to accused male students, some colleges will comply, but others will simply resist, firm in their belief that they are on the right side of history and, even if courts don’t agree, are doing what they have to, what they should, do to protect women. They are, in essence, challenging the courts by saying “make me,” and the reality is that the “least dangerous branch” doesn’t have any really good magic to do so.
Attorney Deborah Gordon, who represented the accused student, praised Judge Tarnow’s decision. “We are very pleased to have a court order ensuring that there will be due process for our client. It is unfortunate that the University continues to issue policies applicable to sexual misconduct complaints that do not comply with federal law. This lawsuit was the result of those decisions.”
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The University of Michigan’s refusal to recognize an accused student’s “clearly established due process rights” led a federal judge to deny its administrators “qualified immunity” in the student’s lawsuit. Senior U.S. District Judge Arthur Tarnow went much further, declaring the school’s 2018 Title IX policy unconstitutional and an element of the “interim” policy that replaced it unconstitutional. “John Doe” sued the taxpayer-funded institution in 2018 because it placed an “indefinite hold” on his transcript and degree after a female student accused him of sexual misconduct. It also withheld “any form of hearing or cross examination,” per its policy that year.
Months later, in a different lawsuit against UMich known as Baum, the 6th U.S. Circuit Court of Appeals ordered public universities in its jurisdiction to allow cross-examination and live hearings when credibility is an issue in Title IX proceedings. But a lower profile 6th Circuit ruling against the University of Cincinnati in 2017 had already established that public universities must provide “some kind of hearing” for a student to “share his version of events” in disputes that are dependent on credibility.
UMich’s argument that John’s due process rights were not violated because no sanctions or findings of guilt were levied against him was flatly rejected. “Plaintiff’s injury lies in the deprivation of one of the most basic due process rights—the hearing itself,” Tarnow wrote, granting John summary judgment on his due process claim. His denial of qualified immunity leaves eight officials potentially liable as individuals, including Pamela Heatlie, who was quietly removed as senior director of the Office for Institutional Equity after the Baum ruling, and Robert Sellers, the very well paid chief diversity officer. Also affected: Provost Martin Philbert, named in a similar lawsuit by an accused professor; Office of Student Conflict Resolution Director Erik Wessel; Dean of Students Laura Blake Jones; now-retired Vice President of Student Life E. Royster Harper; OIE investigator Suzanne McFadden; and Registrar Paul Robinson. (Tarnow’s impatience with the university has been public knowledge for months. Last summer the judge blasted UMich for hiring three firms even before trial and fighting his order for President Mark Schlissel to appear at a settlement conference.)
On the other hand, the judge dismissed John’s state and federal gender discrimination claims. The accused student “failed to show a plausible inference of intentional gender discrimination,” since his Title IX proceeding is still pending and “no outcome has occurred.” Because federal courts are hesitant to decide novel issues of state law, including John’s sex discrimination claim, Tarnow dismissed those as well. “The University may proceed with its disciplinary proceedings” against John, so long as it includes “a live hearing, in person or via video communication, with the opportunity to cross-examine witnesses” and his accuser, the judge said.
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“Title IX is a broken system,” said attorney Joshua Farmer. As schools draft policies to protect survivors, some argue another group has been ignored: the students accused of sexual misconduct. “Its goals are well-intended, but guidance from the federal government is constantly changing.”
That’s led to a central tenet of the debate: whether students accused of sexual misconduct are offered due process by their colleges and universities. Currently, Virginia colleges have policies in place to expunge citations for students who re-enroll in school and return to “good standing.” What Virginia schools don’t have is a way to expunge transcript notations for students who choose to leave a college during a sexual misconduct investigation. There’s currently no state policy that allows universities to remove a notation if a student is suspended and chooses to withdraw from school. That’s the case even if the student meets all the conditions to return to good standing after their suspension. A new bill would offer a path forward. Schools would be required to adopt policies to expunge transcript notations for “good cause shown” after a period of three years.
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UConn has agreed to give a second hearing to a student whose claim in a federal suit that he was wrongly accused and suspended for an alleged sexual assault had the potential to put the school’s system for investigating and punishing sexual misconduct on trial. The agreement comes as colleges and universities are under scrutiny of how sexual assault cases are handled on campus.
In a compromise filed in U.S. District Court, the university agreed to allow the male student, identified in court as John Doe, to submit to its disciplinary process a second time, but unlike the first time, present a defense. The agreement applies only to this case.
“UConn agreed to a process that is much more likely to result in a fair hearing for John Doe,” said Doe’s lawyer, Michael Thad Allen of Waterford. “It is just a shame that John Doe had to go to court to get it. Every student should have the right to present witnesses or question witnesses or to see all the evidence. Every student should have the right to have UConn follow its own rules. Every student should get a meaningful review of the single investigator. When faced with a court order UConn was willing to implement standards of fairness that I hope it will also implement in general, not just as a one-off remedy for John Doe.”
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READ KC Johnson’s 2019 review: “In an environment where accused students too often need to go to court to undo unfair Title IX adjudications, lawsuits against universities continued apace in 2019.” 2019 Review-Accused Student Litigation
Two University of Minnesota wrestlers had their suspensions from the team lifted after Hennepin County Attorney Mike Freeman said they wouldn’t be charged in a sexual assault case. Freeman said that there was “inadequate evidence” and there were conflicting accounts of the alleged incident.
In a written statement, the U’s athletic department said: “We became aware today of the Hennepin County Attorney’s decision to bring no charges against two of our student-athletes. In accordance with our Student-Athlete Code of Conduct, we have decided to lift the suspension of the student-athletes involved. They are immediately eligible to rejoin team activities.”
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