January 17, 2014
Some updates on two of the Title IX lawsuits filed by male students accused of sexual assault and disciplined through college tribunals.
In the Vassar lawsuit, discovery has commenced, and Vassar has until February 3 to turn over material to Peter Yu’s attorneys. Presumably this material will include documents on the shadowy organization–the Interpersonal Violence Panel–under which Yu was prosecuted. (The Vassar website declines to provide details of the panel’s procedures, unlike other aspects of the college disciplinary process.) Discovery also should reveal the identities of the three faculty members on the tribunal that deemed Yu a rapist (based on a preponderance of evidence), allowing Yu’s attorneys to explore whether any or all of the tribunal members had preexisting relationships with the father of the accuser, who’s a Vassar professor.
Meanwhile, in the Brian Harris lawsuit against St. Joseph’s, FIRE filed an amicus brief challenging the argument of St. Joe’s that the court should defer to OCR’s judgment (as outlined in the “Dear Colleague” letter, which FIRE with understatement terms “an immensely controversial document”) regarding proper campus procedures in sexual assault cases.
FIRE argues that while the OCR dramatically shifted policy with the “Dear Colleague” letter, it never solicited public notice and comment, a violation of normal procedures that means its provisions are “invalid and due no deference.” Yet, as FIRE argues, St. Joe’s used the “Dear Colleague” letter as one if its defenses, essentially asking the court to conclude that an invalid rule should be deemed legally “mandatory.”
Even if the court were tempted to defer to OCR, however, FIRE urges it not to do so, since “the Dear Colleague letter poses constitutional problems and fails to account for existing law.” For instance, the letter’s disapproval of cross-examination, FIRE correctly argues, seems to violate the due process clause. Finally, FIRE argues that the “Dear Colleague” letter is simply unpersuasive, since “it is not reasonable to conclude that lowering the standard of evidence employed in sexual harassment and sexual violence adjudications will result in either a reduction of instances of sexual assault or more just outcomes.”
In response, St. Joe’s urges the court to ignore FIRE’s brief, since suggesting the “Dear Colleague” letter is critical to the university’s claims is a “spurious and an intentional misreading of the University’s brief.” This, of course, the same university that previously had informed the court that it was “mandated” (emphasis added) to follow the provisions of the “Dear Colleague” letter. Now, however, St. Joe’s has retreated, as “The University invokes the ‘Dear Colleague’ Letter only as a further support that its policies were not just clearly stated and followed in Mr. Harris’ case, but they are consistent with federal government guidance on the subject.” The university’s backtracking on whether it was or was not mandated to follow the “Dear Colleague” letter raises some doubts about its good faith.
A final note: despite his consistently sympathetic portrayals of accusers who have filed Title IX complaints against schools like UNC, Occidental, and Swarthmore, Richard Perez-Peña (and his colleagues at the New York Times) still haven’t mentioned either the Vassar or the St. Joe’s lawsuits.