Pomona, the Courts, & Basic Fairness

As more and more schools (currently 72 since the Dear Colleague letter, and counting) have found themselves on the losing end of due process decisions, a handful of institutions have resisted in a troubling manner. Rather than acknowledge that court decisions showed the need to reform their unfair procedures, schools instead have maneuvered to neuter an accused student’s efforts to go to court.

The trend started a few months ago at Penn State. After a temporary restraining order blocked the university from suspending a student, the university abruptly announced (without informing the court) that it was withdrawing the student’s guilty finding—but would re-try him, subject to eliminating some (but not all) of the procedural defects in the investigation identified by the court. The accused student’s lawyer filed a contempt motion; the day before the hearing on the motion, Penn State withdrew plans for a new disciplinary hearing for the student.

Then came Texas, where the university president overturned a not guilty finding after the accuser—whose father was a major donor to the school—had filed an appeal. The accused student sued; the judge in the case scheduled a hearing, at which the president was scheduled to testify. Less than a week before the hearing, Texas announced that the president had cancelled his guilty finding, and would submit the accuser’s appeal to another, unnamed Texas administrator. But the court called the university’s bluff, and refused to cancel the hearing. That morning, just before the president was to take the stand, the two sides settled, and the university permanently withdrew the guilty finding.

A common theme to these two cases: Penn State or Texas procedures did not allow a new hearing after the university had adjudicated the case and dismissed an internal appeal. In short, both schools were trying to invent new procedures on the fly to remove procedurally flawed decisions from a court’s jurisdiction.

At least Penn State and Texas had the good sense to ultimately back down. Not so, at least as of now, Pomona College in California. The basics of the Pomona case were depressingly familiar. (You can read the complaint here.) Two students met in spring 2015, and flirted; both had been drinking. (The accuser also had smoked some marijuana.) The two students went back to the accused student’s dorm room.

As the two students became more intimate, the accuser later would say that she had not desired to go forward. She was experiencing, she later claimed, a PTSD-related reaction caused by other alleged sexual assaults she had experienced. Nonetheless, this claimed issue was never communicated to the accused student. So the two students (according to the college investigator’s summary of an interview with the accuser) “ended up in his bed, but she was unsure of how they got there.” The accuser further admitted voluntarily kissing the accused student (who I’ll call JD), while both were shirtless, in his bed.

At that point, the two stories diverged. The accuser claimed that the additional sexual contact was without consent; JD claimed that the accuser consented unequivocally by physically moving his hand down to her vagina. Both sides agreed that to the extent the accuser was experiencing mental turmoil from PTSD, she never communicated that to JD, and JD (who was a college student, not a trained mental health professional) was unaware of it.

The accuser filed a Title IX complaint with Pomona nine months after the incident. (She appears never to have gone to the police.) Under Pomona’s policies, the Title IX coordinator hired an investigator who interviewed the two parties and some witnesses, and produced a report. That document then went to an adjudicator hired by Pomona, who presided over what Pomona procedures call a “hearing.” The accused student was allowed to present questions—five days before the hearing—that the hired adjudicator might (or might not) ask of the accuser.

In JD’s case, the investigator, Li Fellers, spoke to him, his roommate, the accuser, and a couple of the accuser’s friends who said that she told them about her discomfort with the incident shortly after it occurred.

The accused student seemed to have strong evidence. JD passed a lie detector test (which Pomona later would refuse to consider). On the critical issue at play in the case, whether she had denied consent to sexual touching, the accuser gave fundamentally inconsistent statements—claiming in one discussion with the investigator that she had frozen during the encounter and had said nothing to JD, claiming in another that she had clearly said no.

Moreover, Fellers’ own investigation raised questions about the accuser’s credibility. The accuser alleged that JD had stalked her, claiming that at two social events on campus, JD—around 15 feet away from her at one occasion, around 20 feet away from her on another—sought to intimidate her. But the accuser, by her own admission, couldn’t identify someone from beyond 10 feet away, due to poor eyesight, and therefore had no idea whether JD was even in the room. Fellers further reported that a “majority” of the accuser’s own witnesses had “contradicted her accounts” of the harassment claim.

Nonetheless, this concrete demonstration of the accuser’s dubious credibility did not prevent Fellers from producing a report suggesting she had believed the accuser’s claim about sexual assault. During the subsequent Pomona hearing, Fellers admitted that around half of her business came from Title IX investigations—suggesting a strong incentive to stay on the good side of the Title IX coordinators who hire her.

Before the hearing commenced, JD’s lawyer (who wasn’t allowed to represent him at the hearing himself) asked for copies of the witness statements to Fellers—only to discover that Pomona policy doesn’t have investigators retain this information. (It was “typically standard that we don’t record” witness interviews, Fellers would later tell the Pomona hearing. “Clients [the universities] don’t want us to record.” It’s not hard to imagine why.) Instead, Pomona turned over Fellers’ interview notes—but with dozens of redactions, even though Pomona policy provided no grounds for withholding this type of material. Fellers later said that the redactions came from the college counsel’s office.

The hearing was a farce—neither the accuser nor her witnesses appeared. In a passage that recalled the hearing in the 6th Circuit’s University of Cincinnati case, the adjudicator, Joseph Costa, noted that procedures existed for some indirect questioning of the accuser, but an absent witness could answer no questions. “If she was here,” said he, “you know, it would be a different story.”

Costa added, “One of the big issues for me in this matter is . . . there’s a lot of factual disputes, and a lot of what is here goes to certain factual disputes.” Yet because the accuser chose not to appear for the hearing, Costa never was able to explore concerns he had with her side of the story. Instead, he heard from a dean to whom the accuser had given her initial allegation—and denied multiple questions JD wanted asked, including questions about the accuser’s medical history, which seemed relevant to the case given her unverified claim of PTSD.

In the end, Costa largely accepted the presentation from Fellers’ report, and, absent cross-examination of the accuser (but after a hearing in which he did question JD at length), Costa found JD guilty. He so concluded despite finding that JD “was earnest in his statements at the hearing that he believed he had consent.” When Pomona denied the appeal, the college’s process was over. So JD went to state court.

That the case was assigned to Judge Mary Strobel seemed ominous—Strobel authored a troubling summer 2017 opinion upholding the infamous Occidental guilty finding. (That was the case where the accuser texted a friend—before going to the accused student’s dorm room—saying she was going to have sex, but Occidental found him guilty anyway.) But the Pomona procedures were too much even for Judge Strobel, who noted that the lack of any opportunity for cross-examination raised “serious fairness questions,” and was so “prejudicial” to JD that the college denied him a “fair hearing.” She set aside Pomona’s guilty finding. You can read her opinion here.

Pomona, of course, has the right to appeal an adverse ruling. Instead, in mid-November Title IX coordinator Sue McCarthy informed JD that Pomona was going to re-try him, using a different adjudicator but the exact same evidence (including the Fellers report) from the original case, and under the same procedures that had produced the decision Judge Strobel set aside.

The university did not inform Judge Strobel of this rather startling decision, which appears to violate existing Pomona procedures. Even more remarkably, McCarthy provided no indication that this second “hearing” (which, again, has no authorization under the college’s policies) would include cross-examination of the accuser, the defect identified in Judge Strobel’s ruling.

Indeed, McCarthy placed an extra burden on JD, demanding that he produce a 20-page report responding to Fellers’ original investigative report, including questions for the accuser if she decided to show up for this new hearing.

It’s not hard to see what Pomona is doing here. Just as Penn State and Texas attempted, the message: wrongly accused students can sue, and might even win in court—but the victory will be meaningless, because the school will simply re-do the process, without altered procedures.

Possible Win for Accused Student in 6th Circuit

This afternoon, campus due process returned to the 6th Circuit, for the fourth oral argument on the issue (and the second in the last 10 days) since issuance of the Dear Colleague letter. The outcome of the case is hard to predict, because two of the three judges on the panel said very little during the hearing. But it seems highly likely that the third judge—Amul Thapar, a Trump nominee, who at one point in the hearing said that the district judge who dismissed the complaint had “erred”—will vote in favor of the accused student.

The facts of the case, which originated from Denison University (here’s the complaint), were unusually strong for the accused student. Even the district judge who dismissed the complaint, Michael Watson (a Bush II nominee) conceded that “one could plausibly conclude that [the accuser] was not incapacitated the night on which she and [the accused student] engaged in sexual activity and that she consented to that activity.” And even Denison conceded that its initial handling of the case was procedurally improper—although the school found the accused student guilty a second time.

The accuser’s original claim was that another Denison student—nicknamed “Man Bun”—had given her a date rape drug at a February 2015 fraternity party. (The record is silent on whether Man Bun was ever charged, much less disciplined, and Denison’s lawyer conceded that she didn’t know his fate.) But the accused student didn’t even attend the party. He texted the accuser that evening, she responded favorably, and she voluntarily came to his room. The two had sex. The allegation against the accused student came two months later—after the accuser publicly claimed Man Bun had drugged her, and after Man Bun (allegedly) harassed her in response. And it came despite text messages showing the accuser had voluntarily come to the accused student’s room, and contemporaneous witnesses who said that she wasn’t incapacitated, as she subsequently claimed.

Judge Watson found no plausible evidence of gender bias, and dismissed the Title IX claim.

This was an unusual oral argument because virtually all the questioning came from Judge Thapar. The only other panel member present, Judge Eugene Siler (a Bush I nominee), asked only three questions, two of which were generic (he wanted each lawyer to identify their strongest case). The third panelist, Judge Helene White (a Clinton nominee) appeared by phone, and asked only one question—favorable to Denison.

Both this case and last week’s Miami case provided the opportunity for the 6th Circuit to adopt the 2nd Circuit’s Columbia argument for Title IX pleading standard. The Miami panel demonstrated no interest in this topic, and nearly all the discussion focused on the specific facts of the case and questions of procedural due process. The Denison panel—or, at least Judge Thapar—seemed more interested. In questions to the accused student’s lawyer, Eric Rosenberg, he expressed strong skepticism that evidence existed to sustain either a hostile environment or selective enforcement Title IX claim against Denison, and made clear that the only claim he considered potentially viable was one based on erroneous outcome.

Denison’s lawyer, Natalie McLaughlin, got off to a difficult start and never really recovered. She opened by trying to argue how difficult it is for colleges to adjudicate sexual assault complaints, and claimed they’re sued by both sides. Judge Thapar wasn’t interested, and noted that however difficult the process, colleges can’t discriminate. He also repeatedly noted that at this stage of the process, the court is supposed to construe facts in favor of the plaintiff.

 

It was in this context that Thapar expressed his belief that the district court “erred”—clearly not a good sign for the university.

 

The heart of the oral argument revolved around an off-the-record statement by university housing official Kristan Hausman, the chair of the Denison disciplinary panel, that her fellow panelists needed to weigh the “future of 1000 girls” as they adjudicated the case.

Judge Thapar pressed McLaughlin on how that statement—allegedly made before Hausman found the accused student guilty—couldn’t indicate bias. He repeatedly wondered whether dismissal would be appropriate if, in a case involving a student of color, a disciplinary panelist had told her colleagues that they needed to weigh “the future of 1000 whites” as they adjudicated.

For instance, what if the accused student were a Black Lives Matter activist?

 

Or an Asian-American?

 

McLaughlin initially tried to parry the questions by noting that the particulars of sexual assault meant that the disciplinary committee could appropriately consider such matters, and worry about how finding the accused student not responsible would threaten the community. Judge Thapar was incredulous: “How can that be?,” he wondered.

 

And when McLaughlin attempted to move on, Thapar jumped back in, to point out that such an argument seemed to all but admit Denison was OK with going after accused males.

 

At that point, McLaughlin tried a new argument, suggesting that even if Hausman were biased, other members of the disciplinary panel weren’t. Thapar wasn’t buying it—and, critically, it seemed as if Judge Siler (in his only substantive comment of the day) wasn’t, either.

 

Judge White asked only one question, a seeming effort to rationalize the Hausman statement. McLaughlin eagerly responded. She was a bit more hesitant in answering Judge Siler’s generic question, conceding that perhaps the Columbia case was relevant to the outcome.

 

Based solely on the oral arguments, the likeliest outcome here is a 2-1 victory for the accused student, stressing that the district court made improper inferences in dismissing the case, though Judge Siler’s general reticence makes him a little difficult to read.

The 6th Circuit, Once Again, Considers Campus Due Process

The last two times a due process case came before the 6th Circuit, it was clear by the end of oral argument which side would prevail. In Doe v. Cummins, the panel—and especially Judge Martha Daughtrey—was if anything more forceful in advocating for the University of Cincinnati than the university’s own lawyer. In Doe v. Cincinnati, the three panelists asked the UC lawyer tough question after tough question; the accused student’s lawyer, Joshua Engel, didn’t even have to use his entire time for argument.

In today’s hearing for Doe v. Miami, by contrast, the oral argument left the final outcome uncertain. One of the three panelists, Judge Ralph Guy, scarcely participated, asking only one (seemingly random) line of questions about how the case initially was reported (by the accuser’s friends, to her RA). The other two judges, Karen Moore (a Clinton nominee) and John Rogers (a Bush II nominee), asked tough questions of both sides. In general, Moore seemed more sympathetic to Miami, and Rogers might have been slightly more sympathetic to the accused student, but anything from a 3-0 opinion for the accused student to a 3-0 opinion for the university seems possible.

This case (along with a companion case out of Denison) appeared teed up to determine whether the 6th Circuit would adopt the 2nd Circuit’s important standard in the Columbia decision, which makes it harder for judges to dismiss Title IX complaints by accused students. But the judges scarcely engaged with that issue, focusing more attention on procedural due process, questions of selective enforcement under Title IX, and the factual specifics of the case.

The district court opinion, which sided with Miami, was written by Judge Michael Barrett.

One of the (many) allegations of gender bias brought by the accused student’s lawyer, Eric Rosenberg, was the writing of the appeals officer, a specialist in gender studies. Judge Moore seemed very skeptical (though she also seemed to interpret Rosenberg’s argument far more broadly than it actually was):

 

Judge Rogers also strongly pushed back against Rosenberg, and implied that he believed sufficient evidence existed (in the accuser’s statement) to justify the finding of guilt. (The accused student in this case was incapacitated and had no memory of the night in question.)

Rosenberg replied that—even if true—these facts suggested that the accuser (who by her own account climbed into bed with the accused student, and voluntarily kissed him despite his incapacitation) also committed sexual assault under Miami’s rules, and yet the university never even investigated her, much less charged her. This response interested Judge Moore, though she wondered if the issue had been preserved for appeal. She returned to the question in an exchange with Miami’s lawyer, Evan Priestle:

 

Judge Moore also worried that Miami had conflated the role of investigator and adjudicator, though she didn’t ask a followup question of Priestle on that matter after Priestle denied the claim (the Title IX coordinator at Miami chaired the hearing panel). Judge Rogers, meanwhile, had several tough questions for Priestle, to which the Miami lawyer mostly avoided a clear response. The judge showed no interest in the Title IX claim, but did, in first question, worry about the lack of due process inherent in Miami’s procedures:

 

It’s hard to argue with Judge Rogers on this point, though he also seemed to think that Miami gave more rights than it does (particularly, the right of the lawyer for the accused student to cross-examine witnesses). In the event, Priestle offered an response —he claimed that because the accused student was excessively intoxicated, a fairer process would not have helped him. Judge Moore, to put it mildly, was not persuaded.

 

And in perhaps the most intriguing section of the hearing, Judge Moore noted how the severity of a sexual assault guilty finding might justify more rigorous procedures under the Constitution.

 

Some of the remaining oral argument was caught up in very specific aspects of the case; it was impossible to determine what the judges took away from these exchanges.

While a broad opinion on the appropriate standard for dismissing an accused student’s Title IX complaint is possible, nothing in the oral argument suggested that the panel was likely to offer such a ruling—one way or the other.

Rep. Speier on the Law, Due Process, & Surveys

Rep. Jackie Speier (D-California) is hardly a minor player on issues of campus due process: she’s the lead sponsor of the House bill to codify as law the Obama-era Title IX guidelines. So it might be assumed that, at the least, she’s well-informed about the issue.

That assumption would be a mistake.

Here are some clips from Speier, compiled from two relatively brief periods of her questioning (mostly) Candice Jackson, at this week’s House task force on campus sexual assault hearing.

Speier doesn’t like the idea of a campus system in which the accuser can be cross-examined. To bolster her case, she inaccurately claims that rape shield laws prevent a defendant from cross-examining his accuser. (They don’t.)

After her inaccurate description of rape shield law, Speier asserts, even more oddly, allowing only the accused party to appeal “is not part of our judicial system.”

Speier believes that the preferred Obama-era research showed that the false report rate for rapes is between 3 and 8 percent. (Depending on the document, it’s either 2-8, or 2-10.) Far more troublingly, the congresswoman believes that all reports not deemed false–a tally that includes unfounded/baseless, inconclusive, or simply ambiguous cases–are “totally true.”

When FIRE’s Joe Cohn attempted to explain her misinterpretation of the surveys, Speier wanted to move along.

Finally, a remarkable exchange between Jackson and Speier, as Speier claimed that OCR’s current emphasis on ensuring that both sides are treated fairly, and the accused is presumed innocent, constitutes “special rights” for the accused. Jackson responded forcefully.

Again: these misstatements come from a key player in House Democrats’ response to campus sexual assault.

 

Senate Democrats Defend the Dear Colleague Letter

As had occurred after Betsy DeVos’ George Washington address, every Democratic senator to speak out in response to the rescinding of the Obama-era Title IX guidance had a sharply negative opinion. Slightly fewer—12—Democratic caucus members spoke up this time.

As had occurred on September 7, no Democratic senator indicated any interest in promoting a fairer system on campus. None mentioned due process. None mentioned the presumption of innocence. In fact, one—Dianne Feinstein—appeared to dismiss the concept, at least as applied to campus sex tribunals.

Major themes:

  • Guilt-tilting tribunals are necessary to increase reporting of campus sexual assault;
  • Guilt-tilting tribunals (but not the police) are necessary to crack down on violent perpetrators;
  • Campus sexual assault allegations should be presumed true, with the contest between “victims” and the “accused”;
  • The purpose of Title IX tribunals is not to achieve justice for all students, but “justice for victims.”

Tim Kaine suggested that creating procedures that will make it easier to find an accused student guilty will encourage victims of campus sex crimes to speak out.

kaine

This is a recurring theme, first offered (before the DeVos speech) by Patty Murray, who cited a link between the Obama-era guidance and increased reporting. There’s no evidence for it—indeed, there’s no evidence that the typical college student even knows which standard of proof his or her institution uses. But it does reflect probably the most consistent emerging ideological justification for the policy: rigging the system to get more guilty findings will produce more reports.

Then there was Pennsylvania senator Bob Casey.

casey.PNG

Campus sexual assault appears to be the only issue in the United States today (or in recent years) in which law enforcement plays virtually no role in combating “violent perpetrators.” Instead, the primary approach to rebuffing “violent perpetrators” must be channeling matters through a university bureaucrat.

Dianne Feinstein’s comment also was interesting.

feinstein.PNG

So if a campus hearing pairs “victims” against the “accused,” the hearing’s only question is whether the “victim” identified the correct perpetrator. (Ironically, as the Boston College case shows, the current campus system can be incapable of even answering that question.) But the question of whether the “victim” is, in fact, a victim is off the table in Feinstein’s world.

The response of Jeanne Shaheen—a moderate within the Democratic caucus—was especially troubling.

shaheen.PNG

Even the Obama administration tossed in rhetoric about fairness into its Title IX guidance, although neither Russlynn Ali nor Catherine Lhamon ever demonstrated any interest in the concept. If, as Shaheen has suggested, the sole “goal” of Title IX tribunals is getting “justice for victims,” virtually any one-sided policy would be acceptable.

Most of the remaining Democratic caucus responses consisted of vitriolic—but substance-free—criticism of the move.

 

One of these items, however, stood out. Here was Bernie Sanders, yesterday.

sanders.PNG

And here was Bernie Sanders, on the 2016 campaign trail.

sandersii.PNG

Sanders appears to have recognized that a position in favor of having law enforcement handle serious campus crimes is no longer tenable for a candidate who wants the Democratic presidential nomination.

[Disclosure: As always, when I post on partisan matters: I’m a Democrat who voted for and donated to Barack Obama in both 2008 (primary and general election) and 2012, and who caucused for Bernie Sanders in 2016.]

Senate Democrats, DeVos, & Due Process

Eighteen of the 48 Senate Democrats tweeted about Betsy DeVos’ Thursday Title IX speech. Each criticized the speech. None of the Democratic senators mentioned fairness, due process, or the presumption of innocence. The only mention of “justice” in a Democratic senator’s tweet came from Tim Kaine, who suggested that DeVos’ ideas—designed to enhance due process in campus tribunals—would frustrate the pursuit of “justice.”

The descriptions of the descriptions of the DeVos speech–which was organized around themes of balance and fairness, and repeatedly said Title IX should apply to sexual assault allegations–included “appalling,” “disgraceful,” “an insult,” “betrays students,” “outrageous,” “shameful,” and “dangerous.”

The tweets are below:

House Democrats, DeVos, & Due Process

Forty House Democrats tweeted about Betsy DeVos Title IX speech. One (Keith Ellison, of all people) offered  a link to a DeVos interview; the other 39 criticized the speech. Not a single House Democrat who tweeted on the speech mentioned due process, the need for fairness, or even respecting the right of an accused student to be presumed innocent.

Among the descriptions of the DeVos speech–which was organized around themes of balance and fairness, and repeatedly said Title IX should apply to sexual assault allegations–“devastating,” “terrible,” “despicable,” “insulting,” and “perverse.”

Here are the tweets: