JUDGE RULES FOR Due Process & Against Univ. of New Mexico, Putting a Dagger in Obama’s TIX Guidance
It’s one judge’s ruling, but if it catches on, it’s a dagger in the heart of the Obama administration’s Title IX guidance, still widely used by universities even though it’s been rescinded. U.S. District Judge James Browning refused to dismiss due process claims against the University of New Mexico in a five-page order last week. He told the taxpayer-funded institution that plaintiff “J. Lee” has “alleged facts sufficient to state a plausible Fourteenth Amendment procedural due process claim” against the board of regents and president of the university. Lee alleged that the university violated his liberty and property interests by ruining his “good reputation” and expelling him for allegedly sexual misconduct. Judge Browning wrote:
“Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness. Moreover, the Court concludes that preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
By finding that the long-lasting consequences of a sexual-misconduct finding justify a higher evidence standard, Browning is taking direct aim at the Department of Education’s six-year mandate that colleges use the preponderance standard regardless of the consequences faced by an accused student. According to Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, this is the first explicit holding against the preponderance standard’s use in Title IX proceedings, at least in sexual-misconduct cases.
thecollegefix.com By Greg Piper
