Category: Title IX

I recently received the following email from a faculty colleague at the University of Michigan-Flint’s School of Management:

Dear School of Management (SOM) Faculty and Staff,

I am the school’s representative on the Chancellor’s recently established Diversity, Equity and Inclusion (DEI) Committee. We are gathering data on what we do regarding diversity, equity and inclusion activities. Are there activities such as speakers, classroom activities, seminars, community engagement activities, etc. related to diversity, equity or inclusion that you are doing or participating in? Please email me a brief description of any activities you are doing or participating in related to DEI by February 28.

I responded to all SOM faculty and staff members in detail as follows:

I wanted to share with you some of my personal activities related to the issue of Diversity, Equity and Inclusion that might be relevant to the Chancellor’s new Diversity, Equity and Inclusion (DEI) Committee.

Background: The federal civil rights law known as Title IX was passed in 1972 to prohibit sex discrimination in higher education. Subsequently, women advanced so rapidly that they outnumbered men in higher education for college enrollment by 1979 and outnumbered men for earning bachelor’s and master’s degrees by 1982. For the last 40 years, men have been an underrepresented minority in higher education and the gender disparity favoring women has increased steadily over time. Since 1982, the growing “gender degree gap” has resulted in women earning nearly 14 million more college degrees than men (see chart above). Yet women in higher education today including at UM, in violation of Title IX’s prohibition of sex discrimination, continue to receive a hugely disproportionate share of campus resources, funding, fellowships, centers, commissions, awards, and scholarships.

Universities across the country, including the University of Michigan on all three campuses, have routinely and illegally offered single-sex, female-only programs that discriminate against non-female students, staff and faculty in violation of Title IX’s prohibition of sex discrimination. Until recently, universities including the University of Michigan have engaged in illegal sex discrimination with impunity because they have not been challenged and held accountable for violating Title IX. Starting in 2016, I have been on a mission to challenge universities across the country, including the University of Michigan, that violate Title IX, and I have filed more than 100 Title IX complaints with the Department of Education’s Office for Civil Rights. About a dozen of those complaints have been successfully resolved in my favor (including some at UM-Flint) and more than 40 other complaints have resulted in federal investigations of civil rights violations that are ongoing (including a federal investigation of UM), and another 40 complaints or so are currently being reviewed by the Office for Civil Rights. I expect that those cases currently under review will eventually result in federal investigations, and I expect further outcomes in my favor for the cases that are eventually resolved.

One example of a successful outcome from my civil rights advocacy is the following: In 2017, UM-Flint’s College of Arts and Sciences, along with the Provost’s Office and K-12 Partnerships, attempted to launch an illegal, discriminatory, single-sex, girl-only, no boys allowed program called “Girls in Engineering, Math and Science (GEMS)” for middle school girls only. In violation of Title IX’s prohibition of sex discrimination, the GEMS program illegally discriminated against middle school boys, it illegally excluded boys from participating based on their sex, and it illegally denied boys from the educational benefits of this program based on their sex. In addition to violating federal civil rights laws (Title IX), UM-Flint’s GEMS program also violated: a) Michigan civil rights laws, b) the Michigan Constitution as amended by Proposal 2 in 2006, and c) the University of Michigan’s own Nondiscrimination Policy. After I filed civil rights complaints with the Michigan Department of Civil Rights and the Department of Education’s Office for Civil Rights, the Title IX Office in Ann Arbor forced CAS and UM-Flint to convert the GEMS program from an illegal, discriminatory single-sex, girl-only program to a legal co-ed, gender-neutral program open to students of all gender identities. (I also successfully challenged three illegal single-sex, female-only faculty awards at UM-Flint and two illegal minority-only faculty awards, and those five faculty awards are now open to faculty of all genders and all races/colors.) I’m sure that if I hadn’t filed a civil rights complaint, the GEMS program would be operating today as an illegal, discriminatory, single-sex, girl-only, no boys allowed program.

The fact that the illegal, discriminatory UM-Flint GEMS program was initially approved by CAS faculty, CAS department chairs, the CAS Dean’s Office, the Provost’s Office and the Chancellor’s Office demonstrates a lack of awareness on our campus of federal civil rights laws and Title IX’s prohibition of sex discrimination. Any efforts to advance “diversity, equity and inclusion” on our campus should be aware of the history on our campus of non-compliance with federal civil rights laws. Even though we hear about our commitment to “diversity, equity and inclusion,” universities including UM frequently practice the exact opposite: “uniformity, inequity and exclusion” when it comes to illegal single-sex, female-only programs, scholarships, awards, initiatives, camps, clubs, events, etc. like the GEMS program that illegally exclude (or attempted to exclude) non-female students, faculty and/or staff.

Subsequently, based on a Title IX complaint I filed with the Office for Civil Rights, the Department of Education has opened a federal investigation of civil rights violations at the University of Michigan for more than 50 discriminatory programs on all three campuses that potentially violate Title IX’s prohibition of sex discrimination, and that investigation is ongoing. By exposing Title IX violations at more than 100 other universities (including UM), it is my mission to advance civil rights for all persons in higher education and end the hypocritical, double standard for enforcement of sex discrimination that has prevailed for so many decades at colleges and universities in the US.

One way that universities like UM can demonstrate their commitment to “diversity, equity and inclusion” is by demonstrating their commitment to enforcing Title IX’s prohibition of sex discrimination. Too often, universities including UM have not vigorously enforced Title IX as they are legally required to do, or at least they have only selectively enforced Title IX, despite large staffs of diversity officers and staffs (now approaching 100 employees at UM). And since UM has frequently violated its own Nondiscrimination Policy by offering single-sex, female only programs, a renewed commitment to nondiscrimination based on sex might be warranted as part of the DEI Committee.

In addition, if a concern of the DEI Committee is to address the challenges that underrepresented minorities face in higher education, I would suggest that the challenges of men – a significantly underrepresented minority at UM-Flint — be acknowledged and addressed. For example, based on Fall 2019 enrollment at UM-Flint, there are currently 175 female students for every 100 male students. A question for the DEI Committee: What if anything should be done to address the fact that men are a significantly underrepresented minority at UM-Flint?

Thanks for considering some the efforts I am making to advance “civil rights for all” and “Title IX for all” at both UM-Flint and in higher education in general, as we advance our commitment to diversity, equity and inclusion at UM-Flint for all constituencies, hopefully including constituencies that are significantly underrepresented.

MP: I don’t think those are exactly the types of contributions to diversity that UM is looking for… Buy hey, they asked me and I responded!!

Ray Carter, Director, Center for Independent Journalism

Senate Bill 1466, by Sen. Julie Daniels, creates the “Student and Administration Equality Act.” Under the legislation, any college student accused of a violation of the school’s disciplinary or conduct rules that carries a potential penalty of 10 or more days suspension or expulsion “shall have the right to be represented at the student’s expense by a licensed attorney or, if the student prefers, a nonattorney advocate.” Under the proposed law, the student’s attorney “may fully participate during the disciplinary proceeding” and would be allowed “the opportunity to make opening and closing statements, to examine and cross-examine witnesses, and to provide the accuser or accused with support, guidance, and advice.”

“It’s very important that you make sure that anyone accused in these instances has full due process, even though they are not appearing in a court of law but they are essentially appearing before a tribunal,” said Daniels, R-Bartlesville.

Students who bring a complaint against another student would have the same right to attorney representation and participation during a hearing, and colleges would be required to provide advance notice of hearings.

Universities that fail to comply with the proposed law could be sued for compensatory damages, reasonable court costs and attorney fees, monetary damages “of not less than the cost of tuition paid by the student,” plus monetary damages of “not less than the amount of any scholarship funding lost as a result of the institution discipline.”

Some lawmakers appeared skeptical of the need for the legislation.

“Can you cite an example where the problem is here?” asked Sen. J.J. Dossett, D-Owasso. “So if a student gets treated unfairly by the institution, can they not do this already? Is there no way for them to push back right now?”

Daniels noted that although the University of Oklahoma makes public the rules for its disciplinary proceedings, and that “the student can have an advocate or attorney present, that person may not participate in the proceeding. So this is a very big change in my bill.”

“Is this overreaching and making the institutions of higher education comply with the state mandating instead of empowering the Regents to set forth this policy?” asked Sen. Carri Hicks, D-Oklahoma City.

Daniels said the bill does not force colleges to change their policies regarding what actions can result in expulsion, but “simply makes sure that we have a full due process, orderly process, for the accused, the accuser, and the student organization.”

She noted the causes for expulsion range from accusations of infringing on another’s free-speech rights to sexual assault. Daniels said the officials sitting on the tribunal are “going in with some advantage over the student who may have an advisor that doesn’t get to participate in their defense.”

Sen. Gary Stanislawski, R-Tulsa, said the lack of due process in many college hearings can create legal problems for students under investigation that increase the importance of addressing the issue.

“Is it not true that anything that is said in that tribunal, as you called it, anything that is said there—witnesses, testimony—may be used in a court of law in the future?” Stanislawski asked.

“That’s all open record,” Daniels said.

When the Foundation for Individual Rights in Education (FIRE) rated the top 53 universities in the country “based on 10 fundamental elements of due process,” the civil rights organization found “the vast majority of institutions lacked most of the procedural safeguards we looked for in written policies.”

FIRE reported that just 28.3 percent of the universities reviewed “guarantee a meaningful hearing, where each party may see and hear the evidence being presented to fact-finders by the opposing party, before a finding of responsibility.” Only a distinct minority of schools allowed students to have the active participation of an advisor or provided the opportunity for “meaningful” cross-examination.

Oklahoma colleges were not among those reviewed in that report.

Nationally, a growing number of students have successfully sued colleges and universities for violations of due-process rights in disciplinary hearings. In 2018, the U.S. Court of Appeals for the Sixth Circuit sided with a student and ruled against the University of Michigan, declaring that “if 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.”

SB 1466 passed the Senate Education Committee on a 13-1 vote. Hicks was the only lawmaker to vote in opposition.

State’s lawyer repeatedly gets facts in the record wrong

Last week we reported on a federal judge’s approval of a temporary restraining order against the University of Connecticut for running an alleged sham trial against a student accused of rape.

U.S. District Judge Michael Shea said the taxpayer-funded university deprived the student the opportunity to mount a “meaningful defense.”

The order was released just hours after a telephone status conference with the parties, including lawyers for “John Doe,” UConn and the state – and a newly released transcript shows Shea’s exasperation with the latter two.

Even though John was seeking to change the status quo by returning to his graduating class, and thus would have to make “a clear showing or a substantial likelihood of success,” the judge indicated UConn had basically made his argument for him.

‘Strictly speaking, that added condition was not in the policy’

“I’ll put my cards on the table,” Shea told Mary Kathryn Lenehan of the Attorney General’s Office:

I am troubled by aspects of this procedure, and in particular I think the thing that troubles me the most is the fact that the hearing body refused to hear from four of the plaintiff’s witnesses.

Indeed, UConn had blocked the testimony of other students in the car where “Jane Roe” first allegedly started “grinding” on John’s lap without asking for his consent. That matters because Jane denied “initiating any sexual contact” on John, raising a credibility problem for her other claim that John raped her later that night.

Shea noted that John’s reduced punishment – from expulsion to two-year suspension, assuming UConn agrees to readmit him – does not much change “the potential damage to his career prospects,” raising the due process requirements for his case:

[I]n light of the fact that the critical factual issue is ultimately who to believe … it would appear to me that the four witnesses, I guess I would say especially the two who were accompanying them in the car, really should have been heard from, frankly. …

[T]he suggestion is that at the hearing the victim, the alleged victim, did not bring any witnesses, and yet her roommate and the friend that she was with that evening were interviewed and the investigator relied on their statements so that the plaintiff never had an opportunity to confront those statements in any way. …

[G]iven all the circumstances that I’ve described, why not hear from the four witnesses at the hearing, which was the bulk of the plaintiff’s defense?

When the state’s lawyer Lenehan tried to argue that John’s witnesses had to give in-person witness testimony, Shea cut her off and read from UConn’s own rules, which put no conditions on how witnesses provide their statements.

“Strictly speaking, that added condition was not in the policy. Isn’t that true?” the judge asked. Lenehan had to admit it wasn’t.

Lenehan also came up short when Shea asked her to find evidence in the record for her claim that the investigator gave the student witnesses “the opportunity to submit a written statement or be interviewed or both.”

‘Oh, come on. I thought you were going to be serious about this’

It got worse from there. The state’s lawyer tried to argue the witnesses from the car “grinding” incident were irrelevant to the bedroom incident, and Lenehan appeared to be unaware that Jane had denied grinding on John at all.

Shea countered that claim, and John’s lawyer Michael Thad Allen pointed to the record where Jane made her denial, contradicting the witnesses in the car.

“I mean it would have been appropriate for the investigator to ask her about that” denial, the judge told Lenehan. “Do you not agree?  She again responded that witness statements from the car were irrelevant, because Jane had admitted that she allowed John to touch her in the car.

“[Y]ou’re not answering my question,” Shea interrupted. At that point the state’s lawyer questioned whether “sitting on someone’s lap gyrating” was really “initiating sexual activity.” Allen chimed in that the investigator never bothered to ask Jane “if she initiated sexual contact.”

MORE: Shea halts UConn punishment for second time in a week

The judge put a halt to Lenehan’s evasion when she argued that two of the three car witnesses couldn’t actually see Jane grinding because they were in the front seat:

MS. LENEHAN: [One front seat witness] felt the chair moving.

THE COURT: It was more than that. He felt the knees in the back of the chair, and the roommate in the back said he didn’t even want to look because of what was happening.

MS. LENEHAN: Right, but then how did they have relevant testimony?

THE COURT: Oh, come on. I thought you were going to be serious about this.

Lenehan continued flailing, trying to argue that anything other than directly looking at Jane grinding on John’s lap rendered a witness irrelevant. Shea noted that Jane also denied inviting John “to come back into the car and to go to the dorm. These witnesses would testify to the contrary.”

The judge scolded Lenehan, representing the state of Connecticut, for not having “read the statements a little more carefully, frankly, if you’re going to kind of debate it with me … because you’ve got the facts wrong.”

She eventually agreed to stop debating Shea, and he responded: “Yeah, please don’t.”

Judge scolds UConn for bann… by The College Fix on Scribd

 ‘It wouldn’t have been true cross-examination anyway’

The judge next pressed Lenehan to explain how due process is served when the hearing officers relied on an investigator’s report with testimony from Jane’s witnesses, yet they didn’t show up for the hearing. (They did not observe any interactions with Jane and John, either.)

“And so the plaintiff in this case was never afforded an opportunity to confront what they had to say,” Shea said, noting that “it wouldn’t have been true cross-examination anyway.”

Lenehan could not answer except to say that procedure “has been defined in student discipline cases at university campuses” as comporting with due process. She again could not cite case law, and she conflated cross-examination with third-party questioning.

Shea called her out for the conflation even while noting that his federal appeals court, the 2nd Circuit, has not given universities the green light to deprive cross-examination to accused students facing serious sanctions.

Noting that John’s lawyer pointed to cross-examination as required by the 6th Circuit, the judge said “[m]aybe it is” in Shea’s court as well. “But assuming that the substitute procedure” of indirect questioning would satisfy due process, that did not even happen here, he said:

[G]iven the severity of the sanction here, how is it in compliance with due process that he’s not allowed to question or have somebody question at least statements that were being relied on … by the hearing officers by witnesses who weren’t even present?

Shea emphasized that neither Lenehan nor Nicole Fournier Gelston, UConn’s general counsel, was at the disciplinary hearing, by their own admission. Only John’s lawyer Allen was there.

He told the judge that the hearing panel refused John’s request to ask Jane why her friend would testify that Jane “came down the hall to ask permission” to have sex with John that night.

The panel also drew “no inference … from the fact that none of [Jane’s] friends came to support her” at the hearing, suggesting more credibility problems, Allen said: “Only my client’s witnesses were excluded when they had credible evidence regarding her own credibility.”

Also “disallowed,” the lawyer said: questions about “some sort of statement” that Jane submitted in April and mentioned in the hearing, which has still not been given to John. Allen confirmed to Shea that this April statement might constitute “impeachment material,” conflicting with statements Jane made in September.

‘This is a difficult case. I wasn’t thrilled to get it’

Shea referred to another UConn case he was handling at the same time, also involving due process but not sexual misconduct.

“I’ll be candid with you. This is a difficult case. I wasn’t thrilled to get it, but here I am,” he said. “I seem to be — I have [addressed] two UConn [temporary restraining orders] in the space of six days, so lucky me.”

Both the allegations and the sanction against John are “very serious,” and the judge also has “serious concerns” about whether John received due process at the hearing. He’ll grant the TRO to John, but “it’s a close call.”

Shea warned Allen that the best his client might get from the court is another hearing on John’s Title IX claim, “which we really haven’t talked about,” and which might go against him as well. That would mean “he will have done whatever work in this semester for naught.”

The judge suggested and the parties agreed to meet again at a preliminary injunction hearing Feb. 11-12.

The transcript shows the university’s “disdain for due process rights,” Samantha Harris, vice president of procedural advocacy for the Foundation for Individual Rights in Education, wrote in a blog post highlighting several relevant portions of the transcript.

Allen told Harris he wasn’t surprised by the university’s arguments at the conference, “because this was how they conducted the entire investigation and hearing”:

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.

Read the transcript and Harris’s blog post.

h/t Robby Soave

MORE: Shea stops UConn for punishing students for protected speech

When it started “happening,” meaning that it wasn’t just some crazy conspiracy theory but had metastasized into reality, I wrote about it. For the sake of time frame, this was before Alyssa Milano grabbed onto Tarana Burke’s 2006 coinage of Me Too. This wasn’t an accident, but a decision to elevate unproven accusation into indisputable “truth.” It was a decision that the cost of the “few” false accusations and ruination of innocents was unfortunate, but necessary, collateral damage.

You might also note how critical it is to this scheme that the rape epidemic and false accusations lie be perpetrated. With both of these key beliefs in place, the downside of this extrajudicial and subconstitutional system was small enough that people would overlook its harm, ignore the fact that these cries were entirely unproven and would never be proven. There are no rules of evidence on social media, just as there’s no appeal.

And regardless of where you stand on the underlying issue, it has been a huge success. It has accomplished its goal of circumventing the principles upon which our law was grounded and eviscerating them. But where does it go from here? There remains a problem with the scheme, that as much as they can get men fired or expelled, books burned, movies trashed and art removed from the walls of museums, they still can’t put men in jail without going through the “regular” legal system.

A prosecutor in Maine has the answer.

Victims often hesitate to seek justice because many fear they won’t be believed. Others don’t want to relive the trauma they experienced through lengthy legal proceedings. Sexual assault cases are difficult to prosecute since these crimes often occur in private settings. Aside from personal testimony, investigators often lack solid evidence to build a criminal case.

But District Attorney Natasha Irving says it’s time to reform how the legal system prosecutes sexual assault cases, so victims who come forward know they’ll be supported. Irving says prosecutors shouldn’t decline to prosecute a case just because they “think it’s too hard to prove.”

Reforms prosecutors are all the rage, as activists have smartly realized that District Attorney elections were a weak link in the chain of the system. With very few votes, they could seize these offices, put reformers in place and reinvent the system from the backend to achieve what they have failed to accomplish from the legislative side. Few people cared about District Attorney races outside their friends and family, and they were handed vast power by legislators who thought they would always be handpicked by party leaders and instructed to do the party’s bidding. Give the activists credit for spotting the opportunity and seizing it.

But Natasha Irving’s idea of how of “reform” isn’t to adhere more closely to the Constitution, to assure every accused of due process, or to recognize that the job of a prosecutor isn’t to convict, but to “do justice.” Rather, her “reform” is to arrest and prosecute people against whom there is insufficient evidence to convict.

But that shouldn’t be a primary concern, said Irving who failed to get a conviction in that case after the judge ruled the state had not met the burden of proof beyond a reasonable doubt.

“It didn’t feel good for any of us to lose that case. But I do think personally, I would rather show a victim that we will fight for them, than [rejecting a case] because it’s too hard to prove beyond a reasonable doubt,” Irving said. “We don’t want law enforcement or prosecutors to ever think that something is a ‘he said she said.’”

This isn’t to say that prosecutors should reject any case that isn’t a slam dunk, but to prosecute men based on the litany of rationalizations, as proffered by the “experts” who teach the jury what they’re to believe to be fact, when the evidence at best fails to establish proof beyond a reasonable doubt is a deliberate abuse of power. Ironically, it’s the same abuse complained of by reform prosecutors in any other prosecution not involving an accusation of sexual assault. Go figure.

Irving says it’s time for a “come-to-Jesus-moment” about the realities of sexual assault.

Where #MeToo has enjoyed massive, if mindless, acceptance among the woke, it is now working its way back into the legal system it was created to avoid, only this time based upon the invented belief in its foundational ideologies to overcome its evidentiary failings.

Will it work? First, it doesn’t have to in order to accomplish its goal. As the saying goes, you can beat the rap, but you can’t beat the ride. Men will be arrested and prosecuted, their faces and the accusations against them will appear in the media. They will lose their jobs, their homes, their families and be criminals. Even acquitted, the belief of guilt isn’t dissipated. After all, juries don’t return verdicts of “innocent,” but not guilty. And as the presumption of innocence is reduced to a “legal technicality” rather than a tenet of law, there is no way to overcome the taint.

But second, it may well work. For the reasons detained people plead guilty now, they will plead guilty to sex offenses rather than roll the dice at trial or spend a few years awaiting their chance for vindication.

And third, if the rationalizations, the expert witnesses, the narrative, accomplish what their pushers hope, perhaps juries will convict despite the gross inadequacy of proof. Is it “unfair” that some accusations of sexual assault and rape are hard to prove? Perhaps, but that’s always been the nature of our criminal justice system, that it’s better that ten guilty people go free than one innocent be convicted. There was no exception for sex offenses. Until now.

Feminists claim a bogus strong link between televised football and/or major sports events such as the U.S Superbowl to sudden surges in the incidence of domestic violence.

By way of background this topic was formally addressed in another of my blog posts entitled ‘Fudging the figures to support the feminist narrative‘.

Given however that the media repeats the same theme in various western countries on a fairly regular basis, I have decided that it merits its own post here. But don’t take my word for it, just try word-searching on google, twitter, etc, using terms like ‘World Cup domestic violence’ or ‘Super Bowl domestic violence’ to find examples such as those listed below.

To start the ball rolling let’s begin by reading ‘Does most domestic violence occur on Super Bowl sunday?‘ (7 September 2001), and then move on to ‘The World Cup Abuse Nightmare‘, by Christina Hoff Sommers (10 July 2010)

Australian variants of the same hoax include this 2014 article and one about the NSW State of Origin (2018)

I used to think the Melbourne Cup was wholesome as … well … whatever. But oh, no! Here’s a sample of relevant articles that suggest otherwise:

Our Watch CEO: Keeping women safe is crucial ahead of next week (1 November 2019), Families not the winners on Cup day, and Melbourne Cup alcohol and domestic violence

Take a look at ‘Today, as many celebrate, Australia becomes a more dangerous place for women and children‘ (5 November 2019) for the unconvincing ‘proof’ of alleged jumps in domestic violence.

Then there’s ‘Domestic violence services brace for calls as some men take out their footy finals frustration‘ (20 September 2019) And take a look at Twitter to see how many feminist groups and White Knights are trumpeting this misandrist fable.

But wait, a variation on the theme – people (men, of course) also beat their partners after natural disasters … refer to ‘The Hidden Disaster: Violence in the Aftermath of Natural Disaster‘ (2013). See also ‘NSW, Sydney, QLD bushfire updates: Fury after activist links firefighters to domestic violence‘ (13 November 2019)

And here’s a couple of 2018 World Cup articles (example 1 / example 2)

Searches related to domestic violence spiked during both World Cup semi-finals (14 July 2018)

The Two Englands (12 July 2018)

Manager of Newtown pub fired for ‘joking’ about violence against women (19 July 2018)

Oh, but wait. Now it’s being claimed that climate change is also a trigger for increasing level of domestic violence against women (google search on ‘domestic violence climate change’ for more on this topic)

Climate breakdown ‘is increasing violence against women’ (30 January 2020)

Why climate change fuels violence against women (28 January 2020)

(I will progressively add to this list of papers as & when I find the time)

‘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….

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

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’

https://www.bostonglobe.com/2020/01/02/opinion/devos-restores-fairness-campus-sexual-misconduct-cases/