Month: October 2018

It will pay attorney’s fees as well, once they are assessed

Title IX proceedings sometimes traumatize accused students so much they attempt suicide.

This happened to a male student at Cornell University, who formally accused his sex partner of sexual and physical assault before she filed a Title IX complaint against him.

Cornell judged “James Doe” responsible based on the testimony of his accuser’s non-eyewitnesses; redacted information from Doe’s complaint, without his permission, that contradicted his accuser’s testimony; and refused to investigate his allegations, he claimed in a federal lawsuit.

Though Doe won an appeal of his temporary suspension, another official resurrected the charge with no warning – after he’d been diagnosed with “severe anxiety and major depressive disorder.” He attempted suicide the same day.

MORE: Cornell refused to investigate female student’s alleged rape of frat member

A year and a half later, Cornell and Doe have reached a settlement where the Ivy League university will pay him $125,000 to drop the litigation. This is before attorney’s fees, which have yet to be assessed and which Cornell will pay to Doe’s lawyers once the judge approves them.

Brooklyn College Prof. KC Johnson, who closely tracks Title IX litigation, says the settlement occurred before the presiding judge had handed down any order.

Cornell’s options for responding to the suit were limited from the start because of its federal appeals court, Johnson told The College Fix in an email. It could have filed a motion to dismiss, “but it would have had no chance of prevailing” under the 2nd Circuit’s precedentagainst Columbia University, which involved similar factual allegations.

Syracuse University and Hobart & William Smith College, both in New York, learned this the hard way when their motions to dismiss in similar cases were rejected, Johnson said. The 2nd Circuit precedent is also why Yale has not attempted to dismiss the high-profile lawsuit by its former basketball team captain, Jack Montague.

“Several months of the Cornell case were consumed in mediation, though the case technically was pending throughout,” Johnson said.

Andrew Miltenberg, attorney for Doe, told The Fix he couldn’t immediately explain the action in the case since its filing a year and a half ago.

MORE: Judge says Cornell ‘directly contradicted’ policy by not investigating male claim

MORE: Students tell the feds Cornell is botching sexual-assault investigations

MORE: Cornell refused to investigate male’s rape claim against female

Read Fix coverage of the Doe lawsuit.

Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.

In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.

The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:

• “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.”
• “[P]reponderance 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.”
• “[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)

Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.