Month: January 2020

Last week, I wrote about an unusually strong opinion from the U.S. District Court for the District of Connecticut finding that a University of Connecticut student accused of sexual misconduct had shown a “clear likelihood of success” on his claim that UConn violated his constitutional due process rights.

Now, FIRE has obtained a transcript of the status conference that led to that opinion, and it sheds considerable light on what may have motivated U.S. District Judge Michael Shea to knock out a powerful 13-page opinion in defense of due process later that same day.

As I explained last week, one of the critical issues in this case is that the university refused to hear from several of plaintiff’s witnesses who were prepared to testify about matters directly concerning the complainant’s credibility:

John told UConn’s investigator that after John and Jane left the party, they piled — with a group of other friends — into the backseat of another student’s car to go for pizza. According to John, Jane sat on his lap in the car and began to grind against him. Jane denied this, but according to the witness statement of his friend in the front passenger seat, “I could also feel the knees of the girl sitting on [John Doe’s] lap through the back of my seat. I could feel that she was moving back and forth. It was clear to me that these movements on [John Doe’s] lap were sexual.” A witness in the back seat gave a similar statement: “While we were driving to [the pizzeria], the girl sitting on [John Doe’s] lap was moving like she was dancing on his lap, moving her body like moving from her waist. I didn’t want to stare at them.”

Now, of course, these witness statements do not speak to whether the later sexual encounter in Jane’s dorm room was consensual — but since she denied the behavior in the car, they speak to her credibility about the evening’s events. This evidence never saw the light of day, however, because UConn’s investigator excluded the statements of both of these witnesses from his report, and the hearing officers also refused to allow them to testify at the plaintiff’s hearing.

Throughout the conference call with the parties’ lawyers, the judge repeatedly expressed his concern with the fact that these witnesses had not been permitted to testify or even provide written statements:

In response, the university’s lawyer repeatedly tried to argue that the witnesses’ testimony was not relevant.

First, she argued that their testimony was irrelevant because they only witnessed the consensual sexual activity in the car, not the allegedly non-consensual sexual activity in the bedroom. But the judge disagreed — if the complainant lied about initiating sexual activity in the car, that spoke directly to her credibility, and the two parties’ credibility is the central issue in the case.

When that argument failed, the university’s lawyer then argued that their testimony was irrelevant because they had not actually watched the alleged lap dance (the front-seat witness felt the complainant’s knees moving rhythmically against the back of his seat; the back-seat witness looked away in discomfort when he realized what was going on).

At this point, the judge became openly exasperated, telling UConn’s lawyer “[C]ome on. I thought you were going to be serious about this… That’s not a serious answer.”

Eventually, the judge moved on to his concern with another part of the procedure: the fact that UConn’s hearing officers relied on the earlier, written statements of several of the complainant’s witnesses who did not actually testify at the hearing. This, the judge worried, did not provide the plaintiff with a meaningful opportunity to confront the witnesses against him.

The judge noted that other federal courts had found cross-examination necessary to due process in the campus judicial setting (the Second Circuit has yet to address the issue), but he ultimately did not even need to express an opinion on that to find that UConn’s procedure was deficient. Asking UConn’s lawyer to defend the university’s procedure, he said:

I asked the plaintiff’s attorney, Michael Thad Allen, if he had been surprised by the university’s seemingly cavalier attitude towards the plaintiff’s rights at the status conference.

“I’m not surprised, because this was how they conducted the entire investigation and hearing,” Allen said. “The person who did seem surprised was the judge, when UConn effectively admitted that their approach was simply to believe the accusing student no matter what the other witnesses had to say.”

Just hours after the status conference, the judge issued his ruling that by excluding plaintiff’s witnesses and denying him any opportunity to confront the complainant’s witnesses, UConn had likely violated the plaintiff’s due process rights.

FIRE will keep you updated on this case as it develops.

‘Money damages cannot compensate him for these harms’

Give the University of Connecticut credit for its consistency: It does not believe students have constitutional rights, regardless of what they’re accused of doing.

U.S. District Judge Michael Shea issued a temporary restraining order against the university Thursday, saying it deprived an accused student the opportunity to mount a “meaningful defense” against a rape accusation.

A week earlier the same judge stopped the taxpayer-funded university from punishing two students caught on video drunkenly yelling the n-word as they crossed a parking lot.

Shea found that “John Doe” had met the “heightened” pleading standard required to rejoin his 2020 class and enroll for spring classes.

While UConn “adjusted” his punishment from an expulsion to a two-year suspension for sexual assault, Shea emphasized that UConn as a whole and John’s business school in particular have discretion to keep him out even after 2022.

They also won’t recognize his credits from other schools, leaving him with a functional expulsion regardless. “He would have to explain that [two-year] gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future,” the judge wrote, which would “forever change” the rest of his education and career.

The core of the problem for UConn in Shea’s court was its refusal to let John challenge the credibility of his accuser. The two were the only ones present for the disputed sexual encounter in her dorm room, and the testimony of “Jane Roe” was directly contradicted by witnesses who saw them together earlier in the evening.

MORE: Shea stops UConn for punishing students for protected speech

She “began to lap dance, gyrating her hips and ‘grinding’ on John Doe’s penis” so vigorously that the passenger in front of them felt her knees in the seat and understood she was making sexual motions. Another witness noticed the “sexual rhythm,” in John’s words, and tried to look away.

Jane denied “initiating any sexual contact” in spite of these contrary witness statements, aided by Student Conduct Officer Brian Goepfrich, who removed “all evidence of Jane Roe’s active and willing participation in sexual activity.”

That included the exclusion of a witness statement from the car ride – “in breach of UConn policy” – and refusal to interview another car witness, John claimed. “The Hearing Board followed up by forbidding” those two from giving testimony “as live witnesses.”

Goepfrich actively suppressed contradictory statements by Jane, including how she could have “froze” during the rape while admitting she was an active and “cooperative” participant as they changed positions. She also gave contradictory statements to her roommate and then to investigators about inviting John to her room, the motion says.

Jane not only asked him for a condom, which he produced, but then “voluntarily removed her own underwear.” After John explained this to Goepfrich, the officer recorded the encounter in his notes as “ambiguous”:

This speaks volumes about Goepfrich’s bias. He apparently comprehends it as ambiguous that a woman would directly ask a man to get a condom and then remove her own underwear while the man puts the condom on. To Goepfrich, even the clearest indication of consent does not indicate consent so long as a female student expresses regret after the fact.

MORE: U. Iowa officials personally liable for ignoring First Amendment

Not only did the hearing board ban four of John’s five witnesses from testifying, but it didn’t let him challenge Jane’s witnesses at the hearing – whose written testimony the board cited – because they chose not to attend.

“UCONN’s finding of non-consent necessarily hinged on the credibility” of John and Jane, Shea wrote in his order: “Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered [John’s] ability to present a meaningful defense on this issue.”

Citing the ignored or refused testimony of John’s witnesses that would cast doubt on Jane’s credibility, the judge said UConn had no excuse for excluding them.

“In such a dispute, evidence bearing on credibility is critical, and thus the ‘probable value’ of
allowing these witnesses to testify, as an additional procedural safeguard, was substantial,” while imposing no further burden on the university, he wrote.

Despite different courts disagreeing on the right to cross-examination in school disciplinary hearings, in this case John was denied even the right to respond to the accusations against him in a meaningful way,” Shea said. “Under these circumstances, [John] has shown a clear likelihood of success on the merits of his due process claim.”

UConn is severely playing down the consequences John faces, the judge explained:

If he is not permitted to enroll and attend classes while he litigates his claims against UCONN, he will not graduate on time and will have a gap on his résumé and transcript to explain to any future schools or employers, even if he ultimately prevails in this case. Money damages cannot compensate him for these harms, in part because they would be virtually impossible to determine. How does one know why one’s job or school application is rejected?

Shea noted that UConn hasn’t even argued that John’s “presence on campus might inflict particular harm on Roe,” and that John said he and Jane “sometimes crossed paths at their jobs for the same campus employer” for eight months after she accused him. The university didn’t even think it was worth instituting a no-contact order when Jane “renewed her allegations” from April in September.

Shea will next rule on John’s motion for a preliminary injunction after a hearing scheduled for Feb. 11.

Samantha Harris, vice president for procedural advocacy at the Foundation for Individual Rights in Education, publicly told UConn that “it may be time to listen” given the two adverse rulings from the same judge a week apart.

She called the order “a significant ruling for due process on campus,” especially in the 2nd U.S. Court of Appeals, “where the case law is relatively underdeveloped compared to” the Midwestern 6th Circuit and New England’s 1st Circuit.

This case challenges the fairness of disciplinary proceedings brought against Plaintiff John Doe by the University of Connecticut (“UCONN”) for alleged sexual assault, culminating in the Plaintiff’s two-year suspension from the University…. As set forth herein, the Court grants the Plaintiff’s motion for a Temporary Restraining Order {allow[ing] him to “rejoin the class of 2020” and register for Spring classes}.

[A.] Irreparable Harm

Based on the facts alleged in the complaint, the Plaintiff’s affidavit, and the documents submitted in support of the motion, it is clear that the Plaintiff will suffer irreparable harm if he cannot enroll in UCONN this semester. The January 15, 2020 letter from UCONN to the Plaintiff states that his suspension is “effective from December 16, 2019 through January 1, 2022.” Though he may apply for readmission in 2022, his “[r]eadmission to the University is not guaranteed” and “reacceptance into your school or college is at the discretion of the school or college.” In addition, “[a] notation of Suspension shall be placed on [his] official transcript until graduation” and “[t]he University of Connecticut will not accept credits earned at another institution during a period of suspension.”

In his affidavit, the Plaintiff explains that he was “majoring in Management Information Systems in the UConn business school” and “had only one semester to go before graduating.” He was in good academic standing, with a 3.5 GPA and an unblemished record, and he held a job on campus. After the suspension, even if he is readmitted to UCONN, he would “still have to reapply to the business school to complete [his] degree.”  He avers that “[w]ith a finding of responsibility for a sex crime and a two-year gap in [his] educational record … [his] educational and career prospects are forever changed.”

Because UCONN “will not accept credits earned at another institution during a period of suspension,” “this two-year suspension stops [his] education dead in the water” and guarantees that he will have a two-year gap in his education.  He would have to explain that gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future.  He states that he was “beginning to apply for internships which are available only during your senior year,” and that “UConn’s actions against [him] have kept [him] from applying to internships, let alone [his] first post-college job[,] which [he] planned to take after graduating in spring 2020.”

For a college student poised to graduate in a few months, it is highly likely that a two-year suspension and a sanction for sexual assault would indeed “forever change[]” the trajectory of his education and career. If he is not permitted to enroll in the Spring 2020 semester, he would need to explain a gap on his résumé in future applications to schools or jobs. He would also need to explain the suspension notation on his UCONN transcript, and a truthful explanation would seriously hinder his prospects. During the January 23, 2020 telephonic status conference, counsel for the defendants did not offer any argument that the harm imposed by a two-year suspension would not be irreparable. I find, therefore, that the Plaintiff has demonstrated irreparable harm.

[B.] Clear Likelihood of Success on the Merits

The Plaintiff alleges, among other claims, that UCONN’s disciplinary proceedings violated his right to due process under the Fourteenth Amendment. On the record before the Court, the Plaintiff has met the heightened requirement for a mandatory injunction and has shown a clear likelihood of success on his due process claim….

On the question of “what process is due [in government administrative hearings],” the law is highly fact-specific. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” A court must consider three factors in determining whether due process has been satisfied: “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”

The Plaintiff was accused of “non-consensual sexual contact and nonconsensual sexual intercourse” with a fellow UCONN student (“Jane Roe”) in Jane Roe’s dorm room on the evening of April 5, 2019. UCONN ultimately found that he did “engage[] in non-consensual sexual contact as well as … non-consensual intercourse with [Jane Roe] in [Roe’s] Residence Hall room.” The Plaintiff does not dispute that he had sexual intercourse with Jane Roe on that night, but he argues that all sexual activity between them was consensual. Because the Plaintiff and Jane Roe were the only two in the dorm room during the incident, UCONN’s finding of non-consent necessarily hinged on the credibility of both the Plaintiff and Jane Roe.

Despite the importance of credibility to the factual dispute, UCONN’s disciplinary procedures hampered the Plaintiff’s ability to present a meaningful defense on this issue. First, the Plaintiff avers in his affidavit that the hearing officers at his December 16, 2019 administrative hearing refused to hear testimony from four of the five witnesses the Plaintiff attempted to present. The evidence the Plaintiff has submitted indicates that his witnesses were prepared to offer testimony that would tend to undermine Jane Roe’s credibility.

Specifically, two witnesses were prepared to testify that Jane Roe had initiated “sexual movements” on the Plaintiff’s lap in the car on the night of April 5, 2019. ECF No. 10-5 at 5 (statement by witness “FW” that “the girl sitting on [Plaintiff’s] lap was moving like she was dancing on his lap, moving her body like moving from her waist. I didn’t want to stare at them.”); ECF No. 10-11 (statement by witness “KW” that “I could also feel the knees of the girl sitting on [Plaintiff’s] lap through the back of my seat. I could feel that she was moving back and forth. It was clear to me that these movements on [Plaintiff’s] lap were sexual. She was not just bumping my seat randomly.”). This is significant because Jane Roe specifically denied initiating any sexual movement on the Plaintiff’s lap. ECF No. 10-2 at 40 (investigator’s interview notes, indicating that he asked Jane Roe, “Information received indicated that you were rubbing your butt on the respondent’s penis while sitting on him in the back seat of the car. Can you respond to this information?” and that Jane Roe responded, “I was not.”).

The record also suggests that the Plaintiff’s proposed witnesses were prepared to testify that Jane Roe and her female friend invited the Plaintiff and one other male friend to their dorm, which would contradict Jane Roe’s written statement, which states, “one of [Plaintiff’s] visiting friends and himself suggested that they come back to my friends and I dorm …. Although my friend and I agreed to them coming over since I knew she liked [Plaintiff’s] friend, I made it a point that we can all, as a group, watch tv in my room as a way to infer that I had no intentions of doing anything sexual ….”

In contrast, the Plaintiff’s friend “JM” stated in his interview that “[Plaintiff] was going to go back to his room, but the ladies wanted me and [Plaintiff] to come back with them. They said ‘let’s chill, let’s come over to our place.’ … My friend [KW] stayed in the car because he did not have a date.” In his written statement, “KW” similarly wrote, “[Plaintiff] got out [of the car]. Both girls in the backseat called out to him to pull him back into the car. They wanted him to come back to their place…. I sure wasn’t being invited back to their dorm…. I stayed in the car and wasn’t invited in. When they left the car, the girls led [JM] and [Plaintiff] to their building. No one invited me to do anything.”

Based on this evidence, the Plaintiff’s proposed witnesses would have provided relevant testimony as to Jane Roe’s credibility, but the hearing officers allowed testimony only from “JM,” refusing to hear testimony from “FW,” “KW,” and two other witnesses proposed by the Plaintiff. “KW” was never even interviewed during the investigation, though the Plaintiff identified him as a potential witness during his interview.

Under the factors identified in Mathews v. Eldridge, although there is a “risk of an erroneous deprivation” in any case involving a “he said/she said” dispute, that risk was heightened by the procedures used here. In such a dispute, evidence bearing on credibility is critical, and thus the “probable value” of allowing these witnesses to testify, as an additional procedural safeguard, was substantial. That value easily outweighed any burden on UCONN, since the witnesses were already present at the hearing and willing to testify.

In addition to denying the Plaintiff the opportunity to present four of his five witnesses, UCONN also never gave the Plaintiff an adequate opportunity to respond to or question Jane Roe or the other female witnesses interviewed during the investigation. Under UCONN’s policy, the Plaintiff was provided with a copy of Jane Roe’s statement and notes from interviews with Roe and two other female witnesses only after the investigation was complete and the investigator had prepared recommended findings. At the hearing, only Roe testified; the other two female witnesses did not attend.

The Plaintiff, therefore, did not have the opportunity at any point in the process to propose any questions for the two female witnesses, let alone to cross-examine them. But the investigator and the hearing officers relied on the interviews of those witnesses in making their determinations. See ECF No. 10-7 at 8, 10 (investigator quoting statements from female witnesses, “S3” and “S4” in analyzing the disputed facts of the incident and concluding “there is a preponderance of the evidence that [Plaintiff] engaged in non-consensual sexual contact”). And while the Plaintiff was allowed to propose some questions for the hearing officers to ask Jane Roe, the hearing officers did not ask every question the Plaintiff proposed, according to representations by Plaintiff’s counsel during the January 23, 2020 argument. See also id. (The Plaintiff asked for a copy of any statement Roe submitted in April 2019, but UCONN did not provide it, and the hearing officers accepted Roe’s testimony that it was the “same” as her later statement without further questioning.).

In analyzing the requirements of due process in the context of university disciplinary proceedings, courts differ on the question of whether the accused has a right to cross-examine witnesses in the traditional manner. Here, however, the Plaintiff was denied even the right to respond to the accusations against him in a meaningful way, because he had no opportunity to question or confront two of Roe’s witnesses on whose statements the hearing officers chose to rely. Given UCONN’s reliance on this testimony and given the importance of credibility evidence to this factual dispute, denying the Plaintiff the opportunity to respond fully to Jane Roe and her witnesses heightened the risk of erroneous deprivation.

This case involves a severe sanction, a “he said/she said” dispute hinging on the credibility of Roe and the Plaintiff, and important procedural shortcomings in exploring the critical issue of credibility. Under these circumstances, the Plaintiff has shown a clear likelihood of success on the merits of his due process claim. See Wasson v. Trowbridge, 382 F.2d 807, 812 (2d Cir. 1967) (“We conclude, therefore, that due process only requires for the dismissal of a Cadet from the Merchant Marine Academy that he be given a fair hearing at which he is apprised of the charges against him and permitted a defense…. [T]he rudiments of a fair hearing in broad outline are plain. The Cadet must be apprised of the specific charges against him. He must be given an adequate opportunity to present his defense both from the point of view of time and the use of witnesses and other evidence.” (emphasis added)); Purdue Univ., 928 F.3d at 664 (plaintiff adequately alleged a violation of due process where, “in a case that boiled down to a ‘he said/she said,’ ” the university’s “Advisory Committee[] fail[ed] to make any attempt to examine [complainant] Jane’s credibility” even though plaintiff “identified specific impeachment evidence,” and noting that the “failure to even question Jane or John’s roommate to prove whether this evidence was reason to disbelieve Jane was fundamentally unfair to John”)….

[C.] Balance of Equities and Public Interest …

While UCONN certainly has an interest in designing and implementing its own disciplinary proceedings, the harm a TRO would inflict on UCONN is slight. It will suffer no harm if the Plaintiff enrolls and begins to take classes this Spring; UCONN’s general counsel confirmed on the January 23, 2020 telephonic status conference that UCONN would not incur any monetary harm from the Plaintiff’s enrollment in the Spring semester. The Plaintiff’s enrollment may cause some emotional harm to Jane Roe, for example, if she encounters the Plaintiff on campus. However, the Plaintiff avers that there was “no incident or conflict between” him and Roe between April 2019 and December 2019, even though they sometimes crossed paths at their jobs for the same campus employer.

Further, nothing in the record before the Court suggests that UCONN is concerned that the Plaintiff’s presence on campus might inflict particular harm on Roe: it took no action in response to Roe’s initial April 2019 allegation, and it did not institute any interim measures—such as a no-contact order—after she renewed her allegations in September 2019. Therefore, because the suspension’s harm to the Plaintiff outweighs any harm to UConn or anyone else, the balance of equities favors the issuance of a TRO that allows him to enroll and take classes while the parties litigate his motion for a preliminary injunction. An evidentiary hearing on that motion has already been scheduled for February 11, 2020.

Finally, the public interest favors a TRO to protect the Plaintiff’s constitutional right to due process while the parties litigate the preliminary injunction motion. There is a public interest in avoiding violations of constitutional rights. While there is also a public interest in enforcement of university disciplinary policies, allowing the Plaintiff to enroll in school while the Court adjudicates his motion for a preliminary injunction does not unreasonably interfere with that interest….

After all, without the cottage industry of campus sex policing for the sake of saving women’s feelings at the expense of facts and innocence, Title IX administrators would be constrained to get productive jobs. Because of this, Sokolow’s views haven’t been well-appreciated by anyone beyond those who benefit from the grift. Yet, in an LA Times op-ed, it turns out that Sokolow has some observations worthy of note.

The resolution system schools have in place for sexual misconduct allegations could surely benefit from some changes and refinements, but the proposed changes won’t solve the unfairness problem. That is because the OCR has confused procedural unfairness with substantive unfairness, and fixing the procedures alone will not result in more accurate substantive outcomes.

Better substantive decisions will depend on having neutral and impartial decision makers in place, and then training them comprehensively in the fundamentals of good decision making.

To begin with, Sokolow admits that the system has an “unfairness problem,” which might seem akin to admitting that the sun shines during the day but is quite the critical observation. An unfair “resolution system” is a failed system. More importantly, Sokolow concedes that his own tribe, Title IX administrators, are the problem: the system fails because the investigators and decision makers are neither neutral nor impartial.

He’s right. Sokolow is absolutely right. No system can work when the only goal of the investigators and decision makers is to convict the accused. A system run by biased decision makers, bent on believing the women and convicting men no matter what, can’t be fixed by procedural due process if they’re going to convict no matter what. When the facts don’t matter, neither do the procedures. Give Sokolow credit for conceding that his tribe is terminally biased and no process can fix their anti-male animus.

Due process has two components, substantive and procedural. The latter requires fair procedures that enable a fair and impartial decision maker to come to a fair resolution. But the former, substantive due process, requires the decision makers to be fair and impartial. Sokolow’s correct observation about the bias of his tribe, unfortunately, is where his accuracy skids to a halt.

…training them comprehensively in the fundamentals of good decision making.

Can prejudiced people be “comprehensively trained” not to be prejudiced? Sokolow hides behind the meaningless phrase, “good decision making,” when what would have been the takeaway from an impartial observer is unbiased decision making. Surely, no one promotes “bad decision making” as a desired outcome, but what distinguishes good from bad is the question. When it comes to resolution of accusations of sexual assault and rape, it begins with an impartial decision maker. Only then does it move on to how to fairly decide facts, determine credibility, dismiss fallacious arguments and reach a sound decision.

Of course, that’s where Sokolow’s pecuniary interest comes into play, as he makes his living training Title IX administrators using the trauma-informed fallacy, that no matter what the accuser says or remembers, she’s telling the truth. That’s “good decision making” if the only good decision is convicting the male accused student.

While Sokolow’s takeaway may reflect the facile and self-serving outcome that informs his financially-motivated reasoning, at least he deserves credit for saying it out loud: The decision makers are so biased and partial that no amount of procedural due process is going to improve the fairness of the outcome.

But that’s only half the due process question. Assuming it’s possible for colleges to run their “resolution systems” with investigators and decision makers who aren’t so biased that no amount of procedural fairness will matter, what then?

They would, for example, require schools to provide immediate, detailed notice of the allegations in writing before any school interview of the accused. In a standard criminal process — which this is not — the police can question a suspect about alleged criminal activity without notice. The OCR says this is a needed due process protection. Except it isn’t. There is no reason to require a more rigid process under Title IX than is required by law in criminal investigations.

Obviously, Sokolow lacks minimal knowledge of criminal law, as he’s apparently unaware of Miranda Warnings and conflates pre-accusation investigation with an investigation already dedicated to assuring the conviction of the male student.

Currently, most colleges resolve sexual misconduct allegations through robust investigations.

Calling investigations “robust” doesn’t make them so, even if the word doesn’t really bear much relation to what investigations should be. Indeed, they’re not “investigations” at all, in the sense of attempting to ascertain what happened, but rather a compelled opportunity to gather the “evidence” needed to convict the accused. The only “robust” thing about them is the contorted rationalizations as to why the evidence of innocence should be ignored while the lack of evidence of guilt proves the trauma suffered by the woman.

The proposed rules would also require live hearings before impartial decision makers to review the results of the investigation, interview witnesses and review evidence. However, there is no data to show that live hearings are less prone to error than results produced by non-adversarial investigations.

To put this in some remotely rational context, this would be akin to a jury at trial being told by the cops that the defendant was guilty without the defendant having an opportunity to challenge the police conclusion. But there’s no data? Maybe that’s because of the hundreds of years of experience with public trials, as opposed to star chambers, and the somewhat obvious fact that the absence of a live hearing means the “good decision makers” never hear anything but the Title IX investigators conclusion that they male student is GUILTY, GUILTY, GUILTY. How much data would Sokolow need to grasp that’s not a process prone to a fair outcome?

There is no research to indicate that cross-examination creates more accurate results than other ways of allowing the parties in a sexual misconduct case a full and fair opportunity to review and contest all evidence prior to a final determination. In fact, because cross-examination relies on talented questioning and sophisticated rules of evidence, it is susceptible to great variations in its effectiveness.

As ridiculous as it is to argue that cross-examination doesn’t produce more accurate results, Sokolow makes a critical observation, that its utility as a tool for accuracy “relies on talented questioning and sophisticated rules of evidence.” Cross in the hands of a college sophomore isn’t cross in the hands of an experience trial lawyer. Hearsay in the hands of a Art History prof isn’t the same as hearsay in the hands of a judge.

Sokolow’s op-ed reflects the surprising fact that he’s not unaware of how unfair, how ineffective, how biased, this “informal” system is that results in the explusion of innocent male students, forfeits hundreds of thousands of dollars of tuition, taints them in perpetuity as sex offenders and destroys lives. That Sokolow’s takeaway is since it can’t be made fair, it should be largely left to do its harm and changes that could improve its outcome won’t be sufficiently effective, so why bother?

But when was the last time making any system more complex and bureaucratic made it better?

It’s like the answer to “how long must a person’s legs be”? Long enough to reach the ground. The “complexity” of this “resolution system” is whatever is needed to make it viable. Sokolow’s admissions, that the system can’t work because his tribe is too biased and the procedural tools in the hands of untalented college students and unsophisticated academics will fail anyway, aren’t an argument to keep a bad system bad, even though that’s his less than astute conclusion.

The only rational takeaway is that this “informal” campus sex system can’t work, can’t produce fair results and can’t be fixed without extreme changes to provide both substantive and procedural due process. As Brett Sokolow says, the system is a massive failure. That might be good enough for him, but the Constitution and fair-minded people demand better.

Heavily stacked with pro-accuser representatives

Personnel is policy, as activists sometimes say. And Colorado has made clear via its personnel that it intends to ignore both the courts and the Trump administration’s forthcoming regulations on campus sexual assault investigations.

The state Department of Higher Education named the 11 members appointed to the Sexual Misconduct Advisory Committee created by legislation last year. It’s intended to make recommendations to the Legislature on the federal government’s proposed Title IX rules, which are expected this winter.

The committee requires at least one person each from an institution of higher education, a Title IX coordinator from such institution, a victim advocate, a victim attorney, an attorney for accused people in higher education and a person who has provided “trauma-informed care.”

The actual composition of the committee leans heavily on college officials, particularly Title IX administrators, and victim advocates.

Colorado Politics shared the appointee list just before Christmas, and in a post Thursday, Complete Colorado columnist Joshua Sharf noted the high concentration of representatives who tend to favor accusers.

MORE: CU-Boulder buys off professor who exposed kangaroo-court system

They include officials with “Title IX” in their job titles: Jeremy Enlow of the University of Denver, Ana Guevara of Adams State University and Valerie Simons of the University of Colorado-Boulder. Also those whose portfolio includes Title IX: General Counsel Angela Gramse of the Colorado Community College System and Monica Rivera, director of Colorado State’s Women and Gender Advocacy Center.

Three represent victims broadly: Routt County “victim advocate” Julia Luciano, Rocky Mountain Victim Law Center Executive Director Emily Tofte, and Raana Simmons, director of policy for the Colorado Coalition Against Sexual Assault.

One each is an attorney representing accusers (Fierberg National Law Group’s Cari Simon) and accused students (Foster Graham’s Lara Baker). One serves the most neutral role on the committee: nurse practitioner Elle Heeg Miller of the Health Center at Auraria.

The committee’s composition “seem[s] likely to reinforce the system’s bias against college men,” columnist Sharf wrote, particularly because Democratic Gov. Jared Polis signed the larger bill into law after the Foundation for Individual Rights in Education warned it would formalize unfair procedures on campus.

As a member of Congress, Polis said colleges should be allowed to expel 10 accused students if “maybe one or two did it.” He was immediately denounced by the mothers of accused students, criticized by the local newspaper and rebuked by his district attorney. Polis soon issued a highly qualified apology.

MORE: Polis half-apologizes for calling for expulsion of innocent students

Simons explicitly said the university would not change its practice after Education Secretary Betsy DeVos* rescinded the Obama administration’s nonbinding Title IX guidance, calling its process fair to accused students. A federal judge allowed an accused student’s Title IX lawsuit against Simons and the university to move forward nearly a year ago.

“It’s unclear whether the several lawsuits that the UC system has seen from men suspended, expelled, or otherwise punished have taught her anything,” Sharf wrote.

The committee itself was not set up to review procedural fairness for both parties – a major element of the Trump administration’s proposed rules – but rather “to reduce sexual misconduct at institutions,” according to the state agency’s description.

It will meet within 90 days after the federal regulations are adopted and submit an annual report to the education committees of each legislative chamber starting a year from now.

Read Sharf’s column.

*Disclosure

“As FIRE has written repeatedly, the use of the preponderance of the evidence standard is unfair in settings that lack the many safeguards present in the civil and administrative hearings where the standard is typically employed. Additionally, the new law does not provide any meaningful procedural protections for students accused of sexual misconduct. Absent meaningful safeguards, mandating the use of the preponderance of the evidence standard is inappropriate.”

This committee is mandated in that same law, in response to the proposed changes by the federal Department of Education, concerning how schools should handle sexual harassment or sexual assault complaints. (The bureaucratic wheels grind slowly, and usually not all that exceedingly fine. These changes have been in the works for over a year, perhaps an indication of bureaucratic resistance to them.)

The committee appointments consist of eleven members:

• Lara Baker, Attorney, Foster Graham Milstein & Calisher, LLP
• Elle Heeg Miller, Nurse Practitioner, Health Center at Auraria
• Julia Luciano, Victim Advocate, Advocates of Routt County
• Monica Rivera, Director, Women and Gender Advocacy Center, Colorado State University
• Cari Simon, Attorney, The Fierberg National Law Group
• Raana Simmons, Director of Policy, Colorado Coalition Against Sexual Assault
• Emily Tofte, Executive Director, Rocky Mountain Victim Law Center
• Jeremy Enlow, Title IX Coordinator, University of Denver
• Angela Gramse, General Counsel, Colorado Community College System
• Ana Guevara, Director of Title IX, Adams State University
• Valerie Simons, Associate Vice Chancellor and Title IX Coordinator, University of Colorado Boulder

Four are college or university Title IX administrators. Such administrators tend to support rules favoring the complainant and limiting the rights of the accused.

Such an approach can lead to campus rules, and rules interpretations, that deny men – and it’s usually men – accused of sexual assault the right to defend themselves, to introduce exculpatory evidence, or to allow their representatives to cross-examine their accusers.

The former has led colleges and universities to prevent men from testifying in their own defense, from introducing other witnesses, or even contemporaneous text messages that would indicate that sexual activity was consensual rather than coerced. The latter practice – preventing cross-examination – has often been justified on the grounds that it emotionally punishes the victim, ignoring the fact that calling the accuser a victim is itself already a conclusory judgment about what happened.

Valerie Simons of UC Boulder, for instance, gave an interview soon after coming on board in which she indicated that those were her priorities. In the entire interview, there is literally not one word of concern for the men who might be accused of such behavior, or for a process to safeguard their own rights. It’s unclear whether the several lawsuits that the UC system has seen from men suspended, expelled, or otherwise punished have taught her anything.

By contrast, Jeremy Enlow came to DU from the University of Kentucky, where his school was sued for not being sufficiently supine in the face of one woman student’s complaints. The case was eventually dismissed.

Five members are victims’ rights advocates, either from the medical or legal point of view.

One is a nurse practitioner, presumably there for technical expertise.

And Ms. Baker will be there as the lonely criminal defense attorney, trying to defend the rights of the accused.

Biased proceedings that deny the accused their basic rights have led to a slew of lawsuits on procedural grounds, about half of which have been decided for the plaintiff, and many others of which were settled out of court, including several here in Colorado.

Even as the rights of the accused must be safeguarded, nobody wants to ignore or excuse actual campus sexual assault. The evidence mounts that universities simply aren’t capable of handling this sort of complex investigation, one that requires fairness to both sides and full consideration of the evidence. Such accusations are better dealt with by law enforcement.

Mothers of sons in college or planning on going to college here in Colorado: Beware.

Joshua Sharf is a Denver resident.

Today in Inside Higher Ed, higher education risk-management specialist Brett Sokolow shares his thoughts on the changes coming to campus sexual misconduct adjudications when the Department of Education issues its new Title IX regulations. While he says that “[p]erhaps 75 to 80 percent of the proposed regulations mandate neutral or beneficial changes or clarifications,” he is highly critical of the Department’s plan to require universities to resolve sexual misconduct cases through live hearings with cross-examination. Like so many in higher ed, Sokolow views campus sexual misconduct adjudications as merely “educational resolution processes” — a view that disregards the catastrophic, lifelong consequences students face when they are found responsible for sexual misconduct.

Sokolow writes that cross-examination and live hearings are “potentially very detrimental to the cause of sex and gender equity in education,” stating that they are likely to reduce reporting by victims. This is why, he argues, so many of the comments the Office for Civil Rights received on its proposed regulations (which, unlike the 2011 Dear Colleague letter, were properly put through a public notice-and-comment process) opposed these provisions:

Of the nearly 130,000 comments submitted to OCR on the draft regulation, most were negative, with a particular targeting of OCR’s desire to turn educational resolution processes into mini-courtrooms that mirror criminal trials. Part of the reason many victims/survivors don’t choose to report campus sexual violence to law enforcement is because they prefer the less formal and less adversarial resolution processes in place at schools and colleges.

This is an area where FIRE disagrees profoundly with Sokolow. Sexual assault is one of society’s most heinous offenses, and a finding of responsibility — even outside of a court of law — carries severe and lasting consequences, such that labeling the process “educational” is totally inappropriate.

Students expelled for sexual misconduct are virtual pariahs when they seek admission to other universities, and those closer to graduating frequently lose job and graduate school offers as well. Depression, anxiety, and even suicide attempts are common. Last spring, Families Advocating for Campus Equality (FACE), a nonprofit due process advocacy organization founded by parents of students found responsible for sexual misconduct without a fair process, submitted testimony in opposition to a proposed California law concerning campus sexual misconduct adjudications. FACE’s testimony included numerous examples of the impact of a finding of responsibility for sexual misconduct, even “just” in a campus judiciary:

• “[M]y son was left suicidal with severe mental illness. Two extensive hospitalizations, three lost semesters at school, $90,000 in out of pocket losses and the complete loss of his hopes, dreams and possibilities.”
• “We have spent nearly $320,000 in legal expenses, doctors’ bills, and medication. My son’s current mental health issues have been diagnosed as a direct result of the trauma imposed upon him by flawed processes, bullying by school and administrators and friends. Four and a half years later, acquaintances still call him a rapist. Today, he suffers from PTSD with debilitating anxiety that prevents him from work and study.”
• “Our son became depressed, couldn’t sleep, couldn’t eat, lost 25 pounds in two months, and became suicidal. He would call me crying — I would answer the phone and hear breathing and sobs. I found him one day trying to hang himself.”

All of this is not to say that students who commit sexual misconduct should not face serious consequences — they absolutely should. But the seriousness of the consequences underscores the need for an adjudication process with meaningful procedural protections like a hearing with the right to cross-examination. Universities may not like the fact that such procedures are more formal and complex than what they were doing before, but the stakes are simply too high for anything less.

And while Sokolow claims that “no research indicates that cross-examination creates more accurate results” than other forms of adjudication, the one article he cites for this proposition is inapposite, as it focuses exclusively on the limits of cross-examination in eliciting eyewitness testimony in mistaken-identification cases. The article itself acknowledges that cross-examination is good at proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination; the author’s argument is that in mistaken-ID cases, there are not usually “remaining facts known to the witness.” This is a wholly different context from that of campus sexual misconduct cases, where — in the absence of witnesses — the credibility of the two parties, and the completeness of their respective narratives, are often determinative.

Sokolow also expresses concern about the fact that the proposed regulations would “remove the ‘soft ban’ on mediation of sexual violence it implemented in 2011.” Interestingly, a number of university administrators with whom I have spoken — including those in victim support roles — have expressed to me their desire for a mediation option, stating that in the alcohol-fueled, ambiguous situations that often lead to campus accusations, many students’ preference would be for some kind of meaningful conversation and acknowledgment that someone else’s actions caused them pain.

What really surprised me, though, was Sokolow’s statement that “many in the field are rightfully concerned about whether colleges and universities have access to mediators skilled enough to resolve allegations of violence.” Where is his concern over colleges and universities investigating and adjudicating allegations of violence, particularly without the types of procedural safeguards that protect against the introduction of error and bias into the process? If colleges’ ability to handle these matters is a concern when it comes to mediation, shouldn’t it be doubly so when it comes to investigation and adjudication?

One thing Sokolow is absolutely right about is that, following the issuance of the new regulations, there is likely to be litigation on both sides (particularly if, as Sokolow suggests, schools find “clever work-arounds” to avoid implementing provisions they don’t like!). FIRE will be here to bring you all of the latest developments as the fight for due process on campus continues.

Brett Sokolow criticizes live hearings and cross-examination, suggests there may be ‘clever work-arounds’