56th SETTLEMENT in Due Process Case. The College of St. Scholastica Settles with John Doe
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GOOD News, Case Dismissed
Charges Dropped, Cleared by TIX, and Legislation supporting due process investigations
CALIFORNIA COURT OF APPEAL Finds That USC Denied Accused Student A Fair Hearing
This is a great win for John Doe!
The California Court of Appeal issued an opinion today finding that the University of Southern California (“USC”) failed to provide a fair hearing in a Title IX sexual misconduct investigation and final decision by USC’s Vice President for Student Affairs Dr. Ainsley Carry in November 2014. The Court of Appeal ordered the trial court judge, Hon. Joanne B. O’Donnell, to set aside her February 2016 decision denying the accused USC student’s writ of mandate and also awarded John Doe his costs on appeal. READ Appellate Judges Opinion Doe v USC
In May 2014, USC suspended John Doe from the university and evicted him from campus housing the same day without any hearing. Over the next several months the alleged sexual misconduct was investigated first by Marilou Mirkovich, an attorney hired by USC, and later by USC Title IX investigator Dr. Kegan Allee, who served as the investigator and also the adjudicator under USC’s administrative policy. (In December 2013, attorney Marilou Mirkovich was engaged by Occidental College to serve as an adjudicator in another Title IX case that is also pending at the Court of Appeal, Doe v. Occidental College, B284707. ) Dr. Kegan Allee ultimately found by a preponderance of the evidence that John Doe knew or should have known Jane Roe was too drunk to consent to sexual activity. John Doe appealed Dr. Allee’s decision to USC’s anonymous Student Behavior Appeals Panel, however, the USC Appeals Panel agreed with Dr. Allee and recommended his immediate expulsion. On November 12, 2014 Dr. Ainsley Carry informed John Doe that he had approved the Appeals Panel decision, which became final.
In November 2014, John Doe challenged USC’s Title IX action to the California Superior Court in a writ of mandate and sought an order to stay his expulsion from USC so that he could continue his undergraduate education elsewhere, if not at USC. On November 19, 2014, Superior Court Judge Joanne B. O’Donnell denied John Doe’s request for a stay of the administrative expulsion decision, stating that John Doe failed to show “that the notation of expulsion on his transcript will cause him irreparable harm between now and the hearing on his petition.” Over a year later on February 29, 2016, Judge O’Donnell denied John Doe’s writ petition, which the Court of Appeal has now remanded and ordered the trial court to grant. Due to his expulsion from USC, which John Doe was required to disclose to possible transfer schools, John Doe has been unable to gain admittance to another four-year institution to continue his education. Now that the findings and sanctions from the unfair USC Title IX process have been reversed, John Doe should be able to continue his education.
Today’s decision builds on recent California Appellate rulings that help define the scope of fairness and due process protections that colleges and universities must provide to accused students in sexual misconduct proceedings. Mark Hathaway also assisted the accused students at the campus proceedings or trial court in the following published cases: John Doe v. Regents (“UC Santa Barbara”) (2018) 28 Cal.App.5th 44, John Doe v. Claremont McKenna College (2018) 25 Cal.App.5th 1055, and John Doe v. Regents (“UC San Diego”) (2016) 5 Cal.App.5th 1055.
SOS sends a Big Huge Congratulations to John Doe, his family, and to Doe’s attorney’s Mark Hathaway and Jenna Parker. It is due to the perseverance and strength of the few John Doe’s who can mentally and financially endure the college’s persecutions, that these court-ordered due process wins are finally being afforded to Title IX falsey accused students. And of course, a big thank you to the attorneys who are the legal minds in this endeavor..fighting against the goliath college’s counsel who come with endowment funds.
-Alice
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WHY DID SANDRA Vasquez, Pitzer’s Dean & TIX Agent, Destroy an Innocent Low Income Minority Male at USCB?
In a UC Santa Barbara (UCSB) Title IX case handled by current Pitzer College Dean of Students Sandra Vasquez, 629 days into his illegal suspension, the former UCSB student charged with relationship violence by the Title IX office of the University has been cleared of all charges in an unanimous decision by a panel of UCSB administrators. The low-income, minority student in question, initially suspended on August 30, 2016, three weeks before the start of his freshman year, had been accused of either harming his former high school girlfriend or threatening her with serious injury. Almost two years later, it was determined that neither had actually taken place. A previous Independent article highlighted newly-hired Vasquez’s role in concealing material evidence in the case when she was a director of judicial affairs at UCSB despite assuring that she had disclosed to him all of the information upon UCSB would rely in determining whether to lift his suspension. The student’s San Diego-based attorney, Bob Ottilie, previously told the Independent that “[w]hile the specifics of the Department of Education investigation are confidential, I can confirm that Ms. Vasquez’s conduct is a component.” A court ruling affirmed that Vasquez and her colleagues did not provide the accused student with all information at his initial hearing. Nonetheless, Pitzer released a statement expressing their “full support” for Vasquez, and expressed disappointment with the Independent’s “reckless and inaccurate reporting.” In light of the student in question being exonerated by UCSB’s administrative panel—the student had previously been only exonerated by the Santa Barbara Superior Court—Pitzer could not provide an updated comment, but stated that it reaffirmed Vasquez’s statement in defense of her actions: “I have never concealed material evidence in any case, nor would I do anything that flies in the face of the professional and personal ethics that define me.” Ms. Vasquez stated. However, the UCSB panel found that “had the University considered available evidence at the inception of the case (2016), John Doe’s suspension and charges probably would not have occurred.” (emphasis original)
In a March 2017 ruling, Santa Barbara Superior Court Judge Thomas P. Anderle concluded that UCSB had predetermined the student’s guilt. Most importantly, Judge Anderle criticized Vasquez and other UCSB officials for violating the student’s due process rights when withholding evidence at the time of the student’s initial hearing: “The backbone of our legal system requires all evidence to be presented in the Courtroom where it can be tested; it can be questioned…Evidence acquired otherwise is an abrogation of our legal system.”
The alleged actions had taken place on August 13, 2016, in San Diego, California, before the plaintiff was to attend UCSB. His then-girlfriend, who had illegally hacked his social media accounts, began to film the argument that ensued when the plaintiff discovered this. When he found that he was being filmed, the plaintiff tried to take her phone. His girlfriend claimed the plaintiff had hit her; he denied this. The plaintiff also claimed that his then-girlfriend had repeatedly threatened to make the video recording public if he had any interactions with other women at UCSB. After he returned from a week-long orientation program for incoming UCSB freshmen, the student’s girlfriend accused him of flirting with another woman. Shortly thereafter, she posted a doctored version of the video in which he appeared to be hitting her just as the footage cut out. Aside from Dean of Students, Vasquez is also a Title IX coordinator at Pitzer, tasked with “ensuring prompt and equitable resolution of complaints.”…SOS will pray for the Pitzer men.
claremontindependent By (Courageous) Liam MaDonald Pitzer Dean Concealed Evidence
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“I’M A Democrat & a Feminist. And I Support Betsy DeVos’s Title IX Reforms.”
There is an uncomfortable truth in the current system. No one wants to talk about it…Betsy DeVos’s proposed regulations overhauling how colleges handle sexual assault, are far from perfect, but there is a big reason to support them. As a lawyer, I have seen the troubling racial dynamics at play under the current Title IX system and the lack of due process for the accused. Ms. DeVos’s proposals take important steps to fix these problems.
Consider this scenario: A young black man enrolls at a state university in California on an athletic scholarship. He’s the first person in his family to go to college. His teammate’s white ex-girlfriend matches with him on Tinder, comes to his apartment, has sex with him and, they both agree, returns three days later to have consensual sex. Weeks later, the young woman reconciled with her boyfriend and then claimed the Tinder match raped her during the first sexual encounter. The Tinder Match adamantly denies this. Her boyfriend, who is also black, says she is lying. There is no hearing, no chance for the accused to ask her questions. But the Title IX investigator concluded that he committed sexual assault…This happened in early 2018 to a client in the pro bono clinic I direct with my law students. We represent low-income students of color in California who face expulsion based on allegations of sexual assault… We have long over-sexualized, over-criminalized and disproportionately punished black men. It should come as no surprise that, in a setting in which protections for the accused are greatly diminished, this shameful legacy persists…“I’ve assisted multiple men of color, a Dreamer, a homeless man and two trans students,” Harvard Law Professor Janet Halley told me. “How can the left care about these people when the frame is mass incarceration, immigration or trans-positivity and actively reject fairness protections for them under Title IX?” We can fix this. I know my allies on the left will criticize my position, but we cannot allow our political divisions to blind us to the fact that we are taking away students’ ability to get an education without a semblance of due process. What kind of lesson is that?
nytimes.com By Lara Bazelon
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CYNTHIA GARRETT w FACE Supports New TIX Rules on NPR. “A Serious Serious Mental Trauma for People who are Falsely Accused.”
NPR’s Lakshmi Singh speaks with Cynthia Garrett, the co-president of Families Advocating for Campus Equality, who supports recently proposed changes to Title IX rules.
SINGH: In proposing a change to Title IX that would allow a defendant, for example, to cross-examine his or her accuser, we know that concerns have often been raised that this could retraumatize victims of sexual assault. Are you concerned about that at all?
GARRETT: I personally have never advocated for an accused or an accuser to directly cross-examine each other. And that’s not what the regs provide for. They allow a student’s advocate to question the opposing party.
SINGH: Does that not, still, retraumatize victims of sexual assault?
GARRETT: Well, you’re assuming they’re victims before they’ve been questioned. And, as you’ve probably heard, courts say cross-examination is the greatest legal engine ever created for determining the truth….
Is it fair to expel somebody based on something that the accuser refuses to be questioned about? Is that fair, really?…there’s a whole lot of misinformation or disinformation about the repercussions of these findings. We get calls almost every day. We have students that have been through these processes found not responsible and, five years later, are still so traumatized, they can’t go back to school. So this is not a game. This is a serious, serious mental trauma for people who are falsely accused.npr.org
WashingtonPost: DeVos “It’s Time We Balance the Scales of Justice in our Schools”
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NEW TITLE IX Proposal Would Restore Fairness in Sexual-Misconduct Cases
Thank God for Betsy DeVos. With the release on Friday of the proposed new rules for adjudicating campus sexual-misconduct cases, the education secretary has taken an important step toward restoring common sense and sanity in how these cases are handled. My firm has represented more than 100 students and professors at more than 80 institutions across the country —we have seen both sides of this issue. And I can say, without qualification, that these rules would be a significant step forward for both sides. First, the accusers: In our experience, they don’t always want to punish the accused. The Obama administration gave accusers essentially two options — do nothing, or commit to the total Title IX process. Alternative forms of resolution were falsely equated with sweeping sexual assault under the rug. The new proposed rules would, fortunately, change this. And in so doing, they would return agency to the accuser. The news for the accused is also heartening. First, the new rules would require colleges to permit cross-examination by a party’s adviser. If you accuse someone of a terrible thing, he or she should have the right to question you, effectively, about that. The second hugely significant change is the requirement that colleges hold live hearings on sexual-misconduct allegations. To be sure, no system designed or run by human beings is perfect. The Obama administration put its thumb entirely on the accusers’ side of the scale, because they were more interested in fighting a culture war than being fair. (“Due process matters” is a decidedly less catchy rallying cry than “start by believing.”) The new proposed rules, by contrast, may be the most balanced thing I have seen come out of the Trump administration, and Secretary DeVos should be applauded for her courage. If put in place, the rules will finally begin to restore sanity to a process that too often shortchanges both sides of a difficult issue.
chronicle By Justin Dillon
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EQUAL RIGHTS For College Males. DoED Investigates TIX Claims Against Women’s Programs
At home in Turkey, Kursat Pekgoz considered himself a feminist. In the world of American higher education, where he is now pursuing a doctorate in English literature, the 30-year-old activist says it is men who are being treated unfairly. Arguing that campus resource groups for women and women’s studies programs amount to discrimination against men, Pekgoz has filed federal complaints against several universities. The Education Department is taking the complaints seriously. Over the last year, its civil rights division has opened investigations into Yale, Princeton, the University of Southern California and Tulane University to determine whether their women’s programs violate Title IX, a federal law that prohibits sex discrimination at schools that receive federal funding. The department also has received complaints against Georgetown, Northeastern and the University of Pennsylvania. With more women attending and graduating from college than men in America, Pekgoz says women no longer need additional support. The complaints under investigation by the Education Department describe opportunities that appear to exclude men. The Yale Women Innovators, a weekly event series, is discriminatory, Pekgoz argues, because it says it is open to “all Yale women and non-binary femme students, alumni, faculty staff, and community members.” At Princeton, he said in another complaint, the university treats male students unfairly by offering a course on defending against sexual assault only to women. “Everything should be available on a gender-neutral basis,” Pekgoz said. The Education Department is also looking into whether the Cagney and Lacey Fellowship at the University of Southern California shows prejudice against male applicants because it is awarded to “a returning woman. The Education Department said in a statement that it enforces Title IX so that “all students, including men, have equal access to educational opportunity and can go to school without fear of sex discrimination.”
apnews.com By Maria Danilova nytimes
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MOUNTAIN OF EVIDENCE Shows Obama’s DoED Approach to Campus Sex Assault was ‘Widely Criticized’ & ‘Failing’
Since 2011 approximately 117 federal courts, as well as a number of state courts, have raised concerns about the lack of meaningful procedural protections in campus adjudications. A number of those judges have put their concerns in particularly clear terms… In Oct. 2018 Six Democratic senators wrote U.S. Secretary of Education Betsy DeVos to ask her to delay proposed DoED’s regulations governing Title IX. The letter asked Secretary DeVos a series of questions, and requested that the Secretary “provide the analysis behind the Department’s determination that the former Title IX guidance was ‘widely criticized’ and a ‘failed system.’” Because FIRE provided input to the Department and because we value transparency, we sent the Senators a letter to emphasize that the input we provided the current administration was consistent with the input we provided the Department during the Obama administration…It is important to demonstrate the magnitude of that evidence for the public record. So here, in longer form, we are posting the evidentiary support for our statement to the Senate Democrats that our “concerns about the erosion of procedural protections have been subsequently echoed by a diverse range of widely respected organizations, individuals, legal scholars- and an increasing number of state and federal courts.” Specifically, here is just a small sample of materials that highlight the shortcomings of the prior approach, showing it was “widely criticized.”
thefire By Tyler Coward
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SETTLEMENT: John Doe Was Set Up. Hamilton College Ignored His Evidence. Days Before Graduating He’s Expelled. Hamilton Settles.
On Sept. 21, 2018, a settlement was reached in the case of John Doe v. Hamilton College. In seeking to resolve the case without a trial, the parties entered into mediation. After a mediation session on June 28, 2018, the College and the plaintiff began to negotiate a settlement. That agreement was finalized in September, and the court dismissed the lawsuit on Sept. 21, 2018. The details of the settlement are confidential and remain under seal. Cases like Doe’s have cropped up across the country in recent years as male students have used Title IX protections to defend themselves against allegations of sexual assault. In September, the United States Court of Appeals for the Sixth Circuit ruled that universities must allow students accused of sexual misconduct to directly question their accusers.
spec.hamilton.edu By Caroline Nash You can read John Doe’s Case against Hamilton and Story Here
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