Awaiting Developments at Brown

As we await final resolution of the first due process trial since issuance of the Dear Colleague letter in 2011 (at Brown), a few updates.

But, first, the basics of the case: the accused student was found guilty, by a 2-1 vote, on a theory that he had manipulated the female student into having oral sex. This outcome came after: (a) the Brown panel used a broader definition of consent, adopted in summer 2015, for an event that occurred in fall 2014; (b) Brown’s investigator declined to request from the accuser the full range of texts she sent to a friend—who harbored a dislike of the accused student, and who would be a key witness in the case; and (c) Brown had changed its sexual assault procedures, to create specially “trained” tribunals whose membership pool was more than 80 percent female (and whose male members seemed inclined to presume guilt).

Among the updates, the most important: Judge William Smith, a Bush II appointee, issued a preliminary injunction late last month in favor of the accused student. The decision, which Smith had telegraphed at closing arguments, allowed the student to enroll this fall. Smith’s order reiterated that he still could come down in Brown’s favor (though that seems unlikely). He also made clear in closing arguments that if he sides with the student, the victory would be at most a partial one, returning the matter to Brown to allow the university to try the student again.

Second, a campaign apparently initiated by a Brown student named Alex Volpicello has sought to pressure Smith to rule in Brown’s favor. (It is unclear if Volpicello has any relationship to the accuser.) Reflecting the newfound willingness of many elite students to trust the decisions of their university tribunals, no matter now unfair the procedures, Volpicello appeared untroubled by Brown’s lawyer suggesting at closing argument that a “power differential” (leading to coercion) might have existed between the two students—based on the fact that the two belonged to the same club (debate) and the male student was a year ahead of the accuser in school. Nor did the protesters find fault with Brown’s lawyer excusing Brown’s “training” materials on grounds that OCR required such training (but even OCR doesn’t require biased training); or citing OCR to explain away the investigator’s failure to ask for key text messages; or the impact of Brown’s “training,” which at least one panelist interpreted as requiring her to ignore exculpatory texts from the accuser sent after the alleged assault. Volpicello and associates launching their campaign through private letters/e-mails rather than through an amicus brief also suggests a desire to game the system. It seems unlikely that a life-tenured judge will be pressured in this way.

Finally, the preliminary injunction received some media coverage—both on campus, in the Brown newspaper, and nationally, through the Wall Street Journal. The Journal article, by Melissa Korn, had the tone (without ever saying so explicitly) that the accused student likely was guilty. Perhaps this was because it was informed by “the independent investigator’s report to the Title IX Council regarding [the accuser’s] complaint, a copy of which was reviewed by The Wall Street Journal.” The report, prepared by Djuna Perkins, wasn’t part of the public record of the case; given its (apparent) conclusions, it seems unlikely that the accused student or his lawyer leaked it to the WSJ.

That said, it was odd—given the reference to the report—that the WSJ didn’t mention Judge Smith’s repeated expressions of concern with Perkins’s work from the 95-minute closing arguments. For instance, Smith deemed Perkins’s explanation as to why she hadn’t asked for texts between the accuser and a key witness (that she already knew the duo harbored “animus” for the accused student) a “non-sequitur.” (Her argument, the judge continued, “doesn’t make any sense.”) Smith also worried that the investigator had exceeded her authority—Brown’s policy says the investigator isn’t supposed to tell the panel whether she thinks the accused student is guilty, but in this case she essentially did so by pronouncing the accuser more credible. (Why didn’t that “seal the deal” in the lawsuit, the judge asked Brown’s lawyer.)

Judge Smith described the heart of the accused student’s argument as “layered,” amounting to the following: (a) the university shouldn’t have used the 2015-2016 definition of consent for an event that occurred prior to its adoption; (b) even if it was OK for Brown to use the broader definition, it should have done so openly, to give the accused student a chance to defend himself, rather than telling the panel (but not the student) that the broader definition was in play; and (c) even if Brown had so told the accused student, what he did wasn’t manipulation, so he still should have been found not guilty.

Smith’s ruling in the bench trial is pending.

The Week in Durham

Although the lacrosse case technically ended many years ago, its legacy lives on. There was the removal of Mike Nifong’s successor (and would-be second chair if the case had gone to trial) Tracey Cline, also because of ethical improprieties. Or the publication of a revisionist book by William D. Cohan, who described Nifong as “crucified” for the sin of believing the “rational, thoughtful, articulate” Crystal Mangum. Or, at Duke, the revelation last year of a previously secret policy in which junior faculty with (unspecified) views the administration deemed “intolerant” would be told: “You have to go.”

But even for the wonderland that is Durham, events of this week were extraordinary. Radley Balko provided the background to the Darryl Howard case two years ago, and the allegations of prosecutorial misconduct only multiplied since then. The basics: in 1991, Doris Washington and her daughter were murdered in a gruesome fashion. It appeared as if they were also sexually assaulted—at least the police initially explored the question. But then Howard’s DNA (the test was done eight months after he was arrested) wasn’t a match for the rape kit from the daughter (initially there was no test done for Doris Washington’). So the prosecutor in the case assured the jury that the police never considered the matter a sexual assault, suggesting the two women had sex before the crime. And there’s no record the prosecutor turned over a police memo to the defense admitting that police had initially explored the crime as a sexual assault/murder. That prosecutor was Mike Nifong. Howard was convicted, and wound up spending 21 years in prison.

With more sophisticated DNA testing, in 2011, DNA from the mother’s rape kit was matched to a small-time local criminal, Jermeck Jones. The Durham Police Department brought Jones in for questioning, but proved remarkably non-curious about inconsistencies in his remarks. Here’s an excerpt of the exchanges.


For Jones’ entire time in the interrogation room, the Durham PD video recorded him, even as (briefly alone in the room) he chatted to an unknown party on his phone, saying, “I don’t want to rat on anybody.” More problematically, despite a court order requiring the Durham DA’s office to share all relevant evidence about the case with Howard’s lawyers, then-DA Cline’s office didn’t produce the video. Howard’s attorneys didn’t get it for five years, and the video emerged—with devastating effect—in this week’s hearing.

During the three-day hearing, the low point was this exchange between Barry Scheck and Durham Police detective Michele Soucie—who played a small role in investigating the lacrosse case, and who came across as at least somewhat honest. Soucie’s indifference to exploring whether the Durham Police had wrongfully convicted Howard is dispiriting.

It came as little surprise that Judge Orlando Hudson vacated Howard’s murder conviction. The Durham DA’s office announced intent to appeal—but changed its mind two hours later. In exchange, Howard’s attorneys agreed not to pursue a motion for sanctions against the Durham DA’s office. That motion would have led to testimony from Mike Nifong, under examination from Scheck. It’s perhaps easy to see why the Durham DA’s office didn’t want to go down that path.

In the last 24 hours, two more shattering announcement: an AP report revealed that 20 more Durham cases, including four prosecuted by the discredited Nifong, are under review. And on Friday came the announcement that no further charges will be pursued against Howard.

Nifong’s chief defender among the commentariat, author William D. Cohan, has not tweeted or otherwise commented about the events in Durham. (Indeed, to the best of my knowledge, he’s never mentioned the name Darryl Howard, even as he has celebrated Nifong’s “integrity.”) During the hearing, Cohan went on CNN to discuss his investigation into the first date of Anthony Weiner and Huma Abedin. His most recent tweet, as of Friday afternoon, was a photograph of a sunset.

USC and Investigatory Bias

The latest of the due process lawsuits—at USC—reveals how the “affirmative consent” standard works in practice. There were a host of other dubious events in this case; a California state judge stepped in last week to prevent USC from expelling the accused student. You can read the student’s filing here.

The basics: in the fall 2015 semester, two students had a rocky relationship. On the night of October 14, they tried to have intercourse; the accuser said that the event was causing her pain; the specifics remain unclear. But they continued to see each other (and had some form of sexual contact) for more than a month. They eventually broke up when the accused student made clear he wanted to be able to see other women (while still sleeping with the accuser) and the eventual accuser wanted an exclusive relationship.

Neither of these students come across from the file as appealing characters. The male student seems selfish; the female student seems manipulative. In a different environment, they would have gone their separate ways, and chalked up their relationship to a bad college experience.

Instead, throughout the fall, hundreds of text messages flew back and forth between the two, including items that discussed the October 14 event. The accuser started suggesting that the October incident was “rape,” with the male student like Bill Cosby, while saying at the same time she wanted to get back together. (The accused student vehemently denied it, even as he profusely apologized for the uncomfortable events of the night in terms that made clear his behavior was morally dubious.) In January, after the accused student made clear he had no interest, the accuser stepped up the pressure—she told him she’d file a sexual assault charge with USC unless he moved out of his fraternity. “In a twisted way,” she texted him, “[I] want to gain happiness from knowing you’re not doing okay. And I’m frustrated that you’re doing way better than I am when I deserve happiness more than you.” The accused student bowed to the pressure and moved out his fraternity—after which the accuser filed a complaint against him anyway.

USC uses a modified version of the single investigator model. The investigator interviews the witnesses; the accused student has no right to a hearing or to cross-examine his accuser, even indirectly. The investigator then prepares a report, indicating his belief on whether the accused student is guilty, for a body called the Student Equity Review Panel. They pass final judgment and issue a sanction, but the only evidence they see is the report prepared by the investigator. Under USC procedures, the accused student has no opportunity to appear before the Student Equity Review Panel—or even to know the identities of its members.

The USC investigator was Patrick Noonan, a labor lawyer who works in the university’s “Office of Equity and Diversity.” Noonan appears to have no training as a private investigator or in law enforcement. (He had, however, previously served as USC’s interim affirmative action coordinator.) The accuser told the labor lawyer that she had been the victim of a violent rape, with the male student forcibly holding her down 10-15 times as she said no. She said that after they failed to complete the intercourse, the male student kicked her out of the room, crying—and as she left the room, she encountered her attacker’s roommate in the hall. She added that the male student had confessed to the assault in a phone call. She also provided what she deemed the only “relevant” text messages between the two, in which (on several occasions) the male student apologized for the events of the evening but denied a claim of sexual assault.

Noonan interviewed both students and nineteen witnesses—her sorority sisters and some friends—recommended by the accuser. Each reported that the accuser had told them (or that someone had told them that the accuser had told them) that she was raped. (Precisely what any of these witnesses actually said remains unclear, because Noonan doesn’t record witness statements, and his full notes weren’t provided to the accused student.) Noonan elected not to interview the only witness with first-hand knowledge about part of the accuser’s allegations, the accused student’s roommate, who the accuser said saw her racing out of the room in tears. In contrast to the accuser’s approach, the accused student turned over his entire cache of texts with the accuser. According to the investigator’s report, he asked the accused student what he had done to obtain affirmative consent—seemingly recognizing that under California law, the burden of proof was on the accused to show he had obtained affirmative consent throughout the evening.

Noonan was impressed that the accuser had told many people her story. (You can read his report here.) Since he deemed the accuser more credible, he credited her claims that the accused student had confessed to her. He interpreted the accused student’s apologies as a de facto confession, even though the accused student said he was apologizing for the night not going well as part of a longer-term relationship where the two parties often argued and then made up.

Noonan also uncovered what he considered to be a smoking gun: the accused student’s “misrepresentation and manipulation of the information provided to the Investigator,” which “severely diminishes his credibility.” [emphasis added] What was that manipulation? The Excel file produced by the accused student, Noonan asserted, had changed the order of the text messages, pushing a handful of messages (including two of his apology texts) out of order, to the bottom of the Excel spreadsheet, seemingly to deceive the Investigator. Noonan reiterated the point: The accused student’s “manipulation and misrepresentation of these texts erodes the credibility of his narrative of the event.” [emphasis added] Open and shut: With one party credible and the other with eroded credibility, Noonan found the accused student guilty. The Student Equity Review Panel upheld his finding and recommended expulsion.

Incredibly, Noonan had concluded that the accused student manipulated critical evidence without ever asking him about the issue. It turns out that Noonan’s guess—an interpretation that “severely diminishes” and “erodes” the student’s credibility—was wrong. The student had used an app to download his messages and transfer them into an Excel file; the app automatically placed messages larger than a certain size at the end of the spreadsheet. The student himself had done nothing to alter the messages in any way.

The accused student, who had hired attorney Mark Hathaway, appealed. To discuss procedures for the appeal, he and Hathaway requested a conference call with USC Title IX coordinator Gretchen Means and Investigator Noonan. They asked for the identity of the panel members who approved Noonan’s expulsion recommendation—but Means refused to provide them. When the call ended, Hathaway and the student stayed on the line, to confer with another lawyer from Hathaway’s office. For whatever reason, Means and Noonan didn’t disconnect, and instead unleashed a spew of epithets about those “motherfuckers.” “Does that college motherfucker know who I am?,” Means asked Noonan. The USC duo also described the accuser as “cute and intelligent” and wondered what she was doing with “that” (an apparent reference to the accused student). Means subsequently penned a letter suggesting that Hathaway might have committed a criminal act for continuing to listen in to a conference call of which he was an invited member, and not informing her that she had forgotten to hang up on the conference call.

The accused student appealed on multiple grounds. USC rejected each, sometimes comically so. The accused student:

  • suggested that the investigator and Title IX coordinator were biased against him, on grounds they had called him a “motherfucker.” The appeals panel replied that these remarks didn’t account for bias in the adjudication, without explaining why. In a subsequent filing, USC argued Means only supervised the panel that technically made the decision, while Noonan only provided the Student Equity Review Panel with all its evidence. Because neither of them actually voted, their biases were irrelevant.
  • noted that Noonan’s incorrect claim that he had manipulated the text messages led the investigator to improperly question his credibility. The appeals panel admitted that Noonan could have asked the student about how he downloaded the text messages before accusing him of manipulation, but bizarrely suggested that Noonan “otherwise clearly articulated the issue of credibility” in his report. The panel neglected to explain how Noonan’s judgment about the accused student’s credibility could be trusted given his harshest attacks on the student’s credibility had been proven unfounded.
  • claimed that the practical effect of USC’s handling of his case was to impose on him a presumption of guilt, and require him to produce evidence that would prove his innocence. The appeals panel essentially agreed, but implied that the university could take such an approach, and correctly noted that the student’s (unmanipulated) text messages failed to prove he obtained affirmative consent.

A state court judge issued a stay, preventing USC from expelling the student. On this record, it’s not hard to see why.

Cornell’s Year of Sexual Assault Cases

Over the past several years, I’ve done biannual reviews of Yale’s Spangler Reports, the only publications that document all sexual assault cases handled by a single university. These reports are (deliberately, I suspect) bare-bones, but nonetheless they frequently yield intriguing findings.

One of the three due process lawsuits against Cornell, however, has brought to light a more remarkable document. Prepared by Amanda Minikus, Cornell’s Judicial Codes Counselor, the document reviewed all sexual assault cases at Cornell during the 2013-2014 academic year. (The JCC is an independent body that assists students accused in the Cornell disciplinary process; it’s staffed by law students.)

Minikus’ key thesis: “In its efforts to swiftly revise its procedures and crack down on sexual misconduct, Cornell has implemented policy far beyond what is necessary to comply with OCR’s guidance and created a process fraught with inequities.”

For instance, despite silence on the issue from the Office for Civil Rights, accused students at Cornell are advised they have no right to remain silent. The faculty panel that pronounces final judgment hears only from the investigator, not the accused student. The accused student can have a lawyer, but the lawyer can’t actively participate in the disciplinary process. The accused student or his representative can’t cross-examine the accuser, even indirectly. The accused student or his representative has no right to the evidence gathered by the single investigator—on grounds that this constitutes “work product.” (After complaints, Cornell agreed to provide an “edited” version of this material.)

This point doesn’t get stressed enough. As troubling as OCR’s demands are, most universities (including all the Ivy League members) have enacted policies that go even further in denying due process to accused students. Minikus concedes that, per the Dear Colleague letter, Cornell had an interest in avoiding financial penalties from federal government—but it also had “an important interest in preserving Cornell’s commitment to due process and equitable procedural treatment.” Instead, Cornell wholly abandoned its commitment to due process.

Minikus wanted the school to move in the other direction. Since “the preponderance standard is grossly inconsistent with what should be required to impose a punishment so severe,” it should return to the clear and convincing standard for sexual assault allegations, and “reexamine” its decision to follow Dear Colleague letter.

The JCC also worried about the “immediate and severe” effects of interim punishments, which occur before the adjudication process has been completed. The JCC staffers noticed that every demand for an interim punishment filed by an accuser listed either that she “disliked” the accused student, or was uncomfortable with the accused student remaining on campus. But “if one student may be temporarily suspended merely because another student dislikes him or expresses discomfort,” the policy “becomes a tool for students to easily injure one another.”

Minikus’s other main points:

Disparity between treatment of students and of faculty. The report notes that Cornell seems willing to protect the due process rights of faculty accused of sexual misconduct, but not students—a “troubling disparity.” Through the 2013-4 academic year, faculty accused of sexual misconduct were adjudicated by the clear and convincing standard. They had access to all exculpatory evidence. They had a right to remain silent. They had a right to be represented by a lawyer throughout the process. They had a right to a full hearing. They had a right to cross-examine all witnesses, including their accuser. Students had none of those rights. Though Minikus was describing the 2013-4 procedures, the disparity remains.

Breadth of what Cornell considers sexual misconduct. For instance, one 2013-2014 case featured a female student who claimed that ten pairs of undergarments were missing, and therefore had been stolen from her room. She informed the Cornell single investigator-adjudicator that she suspected a male student with whom she’d had negative interactions had committed the crime. She had no evidence that he had done so; indeed, it appears she had no evidence that her undergarments had been stolen at all. But Cornell found the male student guilty of sexual misconduct after the single investigator-adjudicator considered the accuser’s suspicions more credible than the suspected student’s denials, even though the university investigation had uncovered no evidence that the accused student had done anything wrong. That finding—which doubtless will be interpreted by future employers as something equivalent to sexual assault—will remain on his transcript for life.

Gender. In all eight sexual assault cases during the 2013-2014 year, the accused student was male. After the sole male staffer was reassigned for unspecified reasons, all investigator-adjudicators were women, overseen by the Judicial Administrator, who also was a woman. The report noted the “troubling” dynamic of all accused students being male and all investigators being female.

Inconsistent procedures. Minikus detected occasions of seeming bias in Cornell’s approach—twice, polygraph examinations indicating accused student’s truthfulness were deemed inadmissible, on grounds that polygraph results are inadmissible in a criminal proceeding. “Note,” the JCC archly observed, “that investigators’ sudden reliance on the evidentiary standards to the criminal courts stands in contradistinction to their ordinary, emphatic insistence that [the Cornell policy] is an ‘educational’ process with relaxed evidentiary standards and without penal goals.”

Training. Cornell’s Title IX staff receive training from Markel Consulting, whose firm’s website states that his career “has been dedicated to pursuing justice for victims of crime.” A JCC associate attended the training (information for which is not public on the websites of either Markel or Cornell). The associate found that “the training focused primarily on how a school should proceed after a sexual assault took place. In short, the training assumed a sexual assault occurred.” This type of training, the JCC concluded, poorly served Cornell, since “beginning such training with the assumption that every allegation is valid does not train investigators to impartially assess complaints.” The JCC asked Cornell to publicize the training that Title IX officers received; Cornell so far hasn’t accepted that recommendation.

Finally, the JCC faulted Cornell for excluding students from the disciplinary process—since campus sexual assault allegations “frequently arise in social contexts that are characterized by generational norms . . . Behaviors that seem inappropriate to faculty members may actually reflect present-day campus customs or have explanations that are unapparent to older community members.” This lack of “familiarity with student social scene” can cause problems with judgment.

The Minikus document presents a depressing examination of one year in a major university’s sexual assault cases. You can read it here.

[Update, 28 July: The JCC did not publish  an end-0f-year report last spring, but I was told by the current JCC chair that the organization will be producing a report next spring. All concerned with campus due process should look forward to the document.]

Celebrating Erdely as a Journalist

Regardless of their impact on Dean Eramo’s lawsuit, the release of the Rolling Stone affidavits leave little doubt that Sabrina Rubin Erdely isn’t a very good reporter. She had her thesis—existence of a campus “rape culture”—in advance. As Cathy Young noted, the spine of the article, Jackie’s story, “had more red flags than a Soviet military parade.” Yet as Jackie was unwilling or unable to answer key questions, Erdely, a true believer, plowed ahead. And even the discrediting of Jackie’s story didn’t shake Erdely’s confidence in her thesis. In her affidavit, she suggested that if she learned that Jackie had invented the tale, she just would have substituted the experience of another person she had decided was a victim, “Stacy,” as the central vignette.

Earlier today, Worth editor Richard Bradley found it “fascinating to read some of these pre-debunking tweets.” I took a look. He’s right. It’s easy to see how people could have been horrified by the article. But it’s remarkable to observe how many high-caliber editors and reporters praised the quality of Erdely’s journalism. It seems their agreement with Erdely’s thesis blinded them to her flaws—a consistent problem in how most of the mainstream media has approached campus sexual assault.

It’s worth reiterating: Bradley, along with Robby Soave, expressed doubts about Erdely’s work from the start. And within a couple of weeks, the Washington Post (with assists from the Daily Caller and a disastrous Erdely appearance on Slate’s DoubleX podcast) had done the reporting Erdely had not. The overwhelming tendency to praise her reporting, therefore, is notable.

Three categories stand out:

Praising the Caliber of Erdely’s Journalism

Jeffrey Toobin, staff writer at the New Yorker and CNN legal analyst, tweeted to Erdely: “You did amazing work, a real public service.” “Great journalism,” he added.

Fantastic reporting,” gushed Nina Gregory, senior editor on the arts desk at NPR. New York contributing editor Marin Cogan described the piece as “easily one of the best pieces of journalism I’ve read this year.” NBC’s Luke Russert hailed this “extraordinary piece of journalism.” Voactiv’s Susie Banikarim recommended this “important and very well-reported piece on rape culture.” The normally even-handed Richard Deitsch, of Sports Illustrated, expressed “thanks” to Erdely for “her reporting.”

Among editors: Eric Umansky, deputy managing editor at Pro Publica, deemed Erdely’s article—which he said had exposed “lawlessness”—“a triumph of investigative storytelling.” Philadelphia Magazine’s featured editor Richard Rhys described Erdely’s work as “mag[azine] journalism at its best.” BuzzFeed deputy culture editor Karolina Waclawiak celebrated Erdely’s “brilliant reporting.”

Steven Ward, the news director at the Clarion-Ledger, hailed Erdely as a “superstar” who exposed “rape culture at UVA.” For widely published freelance reporter Alex Suskind, Erdely’s article was “required” reading. Former Gawker editor Maggie Shnyarson remarked, “I’d love to get my hands on those little shits.” She presumably wasn’t referring to the campus activists who uncritically championed Jackie’s story.

A tweet from Atlantic’s Jeffrey Goldberg deeming Erdely’s reporting “amazing” survives. But Goldberg had another, presumably more detailed, tweet, in which he also passed along the link to the article. Erdely thanked him for it; many people responded to it. But the tweet has vanished from his timeline.

Calls to Action

David Beard, executive editor for Public Radio International (and formerly of the Washington Post) had a message for Erdely: “You are making change happen. This editor thanks you.” “Thank you, David,” Erdely replied.

Retweeting a Washington Post article on UVA president Sullivan’s decision to suspend all fraternities at the school, Post reporter Dan Zak had a blunt message: “Now burn ‘em down.” Imagine the (appropriate) outrage if—under any circumstances—a Washington Post reporter had publicly advocated burning down a Multicultural Center or a Women’s Center after an allegation that some of their students had committed misconduct.


Neal Rogers, U.S. editor-in-chief of Cycling Tips, said that after reading Erdely’s article, he wanted to “‘rush a frat’—with a semiautomatic.”

The New York Times

The Times has led the way in flawed reporting of campus sexual assault, so it was little surprise to see several of its reporters praise Erdely’s work.

Jessica Lustig, deputy editor at the Times Magazine, commented on how, after Erdely’s “devastating” report,” UVA suspended all fraternities. Times tech policy reporter Celia Kang likewise gave her “kudos” to Erdely, after her “deeply reported” article led to the suspension of all UVA’s fraternities. Times Sunday Styles reporter Katie Rosman also praised Erdely’s role in getting the fraternities suspended: “THIS is a journalist affecting change,” she wrote.

Times business columnist Claire Martin hailed the “incredibly well reported” article. Times political reporter Ashley Parker shared a link to the “devastating” article, which exposed the “culture of rape” at UVA, to people on her twitter feed. David Dobbs, who has written features and essays for the Times, almost sounded like an Erdely fan-boy: “Incredibly good and important work there, Sabrina,” he gushed. “Deep bow to you. Splendid, vital reporting and writing.”

Erdely’s Responses

Before her piece was discredited, Erdely responded to some of the praise. She also offered her own additional analysis. “Not to state the obvious,” she noted on November 22, 2014, “but enlightened men are key to fixing the rape epidemic. It’s so good to have you on board. Let’s recruit more.” (Meanwhile, she deemed herself “shocked” by the phenomenon of “women perpetuating rape culture.”) The next day, she anticipated a movement, hoping “that fraternities at UVA & elsewhere will embrace this as an opportunity to be leaders in turning the tide against rape.” Administrators needed to get in on the act, as well, since the “scary truth is, the culture of rape and impunity is hardly limited to UVA. Every school should be taking a hard look at itself.” And Erdely deemed it a “good time” for “very, very rich” alumni to pressure the UVA leadership.

A final note. Because Rolling Stone replaced Erdely’s article with the Columbia Journalism Review’s (partial) autopsy of the magazine’s editorial failures, reporters whose tweets included an embedded URL now look like the below.



Somehow fitting to see the praise for Erdely’s work accompanied by “what went wrong?”

The UCSD Case Under Appeal

On July 29, 2105, at the tail end of a Senate HELP Committee video (2:35 here; unfortunately, CSPAN had stopped screening at this point, so the video cannot be clipped), Senator Lamar Alexander asked a seemingly innocuous question. What, the Tennessee senator wondered, could schools do to protect the “due process” rights of the accuser and the accused? The panel, which included accusers’ rights activist Dana Bolger and of UC chancellor Janet Napolitano, didn’t respond for several seconds. Then Napolitano noted that this was a “difficult” issue. She did know that students accused of sexual assault on campus shouldn’t have the same right to confront their accuser as students accused in the criminal justice process, and added that UC was “now” looking into this issue.

Napolitano, it seems, hasn’t looked too hard. Recent filings in a UC appeal of one of the most powerful opinions in favor of campus due process, by Judge Joel Pressman regarding a case at UC-San Diego, suggest that for accused students in the Cal system, their leadership believes that, in effect, they have no due process rights.

To refresh on the case: two students had either two or three instances of sexual contact over a two-day period. Both agreed that the third instance, when they had sexual intercourse, was consensual. The accuser claimed that the previous night, their intercourse was non-consensual because she was an inexperienced drinker, and was too intoxicated to consent. The following morning, she alternatively said that the male student tried to digitally penetrate her, or did digitally penetrate her, without her consent. The male student said no morning sexual contact of any kind occurred. Several months later, after encountering the male student dating one of her sorority sisters at a party, the accuser filed her claims with UCSD; she never went to the police.

UCSD’s investigator spoke to 14 witnesses plus the accuser, and rejected the rape claim. But the investigator said she found the accuser credible on the day-after sexual assault claim, and penned a report indicating that she believed the accuser’s claim that the male student digitally penetrated her without consent (although the accuser then voluntarily slept with him that night). A hearing occurred. The accused student’s lawyer could attend but not speak, even as a university administrator, who served as de facto prosecutor, falsely claimed that the student had other sexual misconduct issues and had conceded that some sort of sex occurred on the morning in question. The student couldn’t directly cross-examine the accuser, and 23 of the 32 questions he submitted to the panel were left unasked. Many of these questions dealt with contemporaneous text messages from the accuser that contradicted her later version of events.

The panel found the accused student guilty, though by crediting what the accuser told the investigator (that she had been digitally penetrated without consent) and not what she told them (that the accused student had tried to do so, but she had said no, and he stopped). The university then kept boosting the student’s punishment when he appealed. The briefs on both sides have been filled (here’s the university’s; here’s the accused student’s); the two main areas of disagreement are as follows:

What Constitutes a Fair Process?

The three big procedural issues were:

Access to exculpatory evidence. The university denied to the accused student the investigator’s notes of witness interviews, and two of the accuser’s statements to the investigator.

Cross-examination. University rules, coupled with the panel chair’s refusal to ask most of the questions the accused student submitted, effectively denied any right to cross-examination.

The investigator’s role. The investigator didn’t testify at the hearing, so the accused student had no right to ask her any questions (if the panel had allowed him to do so). Yet the panel ultimately relied on what the accuser told the investigator.

To the university, these procedures were fair. The accused student “received the process he was due,” because the school informed him of the charges against him, and gave him a hearing to present his side of the story. A process in which his lawyer couldn’t speak, in which most of the questions he wanted asked were left on the table, and in which he couldn’t see the exculpatory evidence the university investigator possessed was one in which he “had ample opportunity to present his defenses.” (For good measure, the university cited to the Dear Colleague letter on the dangers of allowing meaningful cross-examination to justify its policies.) Finally, citing a case involving a 16-year-old Ohio high school student, the university maintained that “cross-examination of a school official who investigated the alleged misconduct is not required in student disciplinary proceedings.” Ironically, that same case concluded that the student “was deprived of due process by the panel’s consideration of evidence of which he was not apprised.”

Perhaps the most remarkable element of the university’s brief came in its claim that “none of the 14 witnesses referenced in the OPHD Report were relevant to the digital penetration on February 1, for which Jane Roe and Doe were the only witnesses.” It’s true that these witnesses were asked about the rape allegation of the previous night. But this was a case in which—as the university concedes—the accuser was the only witness claiming the accused student did anything wrong. If these witnesses impeached her credibility about the events of January 31 (as they apparently did, since the university didn’t move forward with charges), it’s very hard to see how this credibility-damaging material wouldn’t be relevant to the accused student’s need to undermine the accuser’s overall credibility.

The student’s brief also brings to light information that had been redacted in the previous filing. One of the key issues in the case centered on the drinking habits of the accuser, a Mormon. In the version she initially presented to UCSD, she claimed that she had only consumed alcohol a couple of times before the night she alleged she was raped. Yet contemporaneous text messages had her discussing an older student who purchased her alcohol (she was underage), which hardly seemed like the behavior of someone who rarely drank. It turns out that before making her rape claim, the accuser was arrested for underage drinking; her parents also found out about her sexual relationship with the student she’d accused. Accordingly, they ordered her to come home on weekends. How this behavior could be reconciled with the accuser’s having told the investigator she was raped because she almost never drank and therefore was new to intoxication doesn’t seem to have concerned UCSD.


To Judge Pressman, the course of the accused student’s appeal represented one of the most troubling aspects of the case. He twice appealed—first to UCSD dean Sherry Mallory, and then to a council of provosts. Each time, his appeal not only was denied, but his punishment was increased (first to a year, then to a year plus a semester)—without explanation.

To UCSD, this path proved that the process worked as intended. The original punishment, the university’s filing implies, was too low, and the provosts’ alterations merely recognized the seriousness of the offense. Indeed, the appeals should be seen as shielding the UCSD from being overturned by a court, since the appeals process shows that six additional people looked at the accuser’s charges and found them “reasonable.” Under California law, the university maintains, as long as a school’s decision is reasonable, the university wins.

The student’s response doesn’t much deal with the latter—very odd—point, in part because it’s transparently absurd. The university hasn’t provided any information that the council of provosts looked at even one piece of evidence about the case, so it’s hard to argue they concluded the judgment was “reasonable” based on the evidence. Mallory did discuss evidence, but in a way that undermined, rather than bolstered, any confidence in the university’s fairness. One of the issues in the case was the disparity in what the accuser told the panel (the accused student tried to digitally penetrate her, but she had asked him to stop, and he did so) and what she allegedly told the UCSD investigator (penetration occurred). Mallory’s response? “Students often expand on the statements included in their initial complaints during follow-up conversations . . .; I expect that is what happened in this instance.” So the appeals officer reached her decision by, essentially, guessing? In any case, the guess made no sense—the accuser’s (narrower) story to the panel came after, not before, her interview with the investigator.

As to the former point, the student notes that the increased punishment did not simply extend the length of the suspension—under university rules, it changed the punishment from a suspension to a de facto expulsion, since USCD requires students suspended for more than two semesters to re-apply for admission. In the current campus environment, the chances that UCSD would re-admit a student found guilty of sexual misconduct are zero.

In general, California state courts have proven unusually receptive to due process claims by accused students; we’ll see if the pattern holds here.

The Other Yale Civil Suit

Since the emergence of the Montague case in the spring, I’ve been struck by an oddity in Yale’s public statements—a consistent reference to the fact that, as the Spangler Reports show, not all male students accused of sexual assault are expelled. From a p.r. standpoint, this line of argument seemed like an odd one. (Whether all accused students have been expelled doesn’t explain why Yale administrators chose not to follow their own procedures when filing charges against Montague.) But from a legal standpoint, Yale’s statements seemed to be reading from perhaps the most troubling of all the campus sexual assault decisions—Judge Jesse Furman’s, involving a case at Columbia.

In his opinion, which is currently under appeal to the Second Circuit, Furman proposed a test, of sorts, for handling Title IX claims filed by the accused.  Unless the accused student could show that all males charged with sexual assault were clearly treated unfairly, he would lose. In the case of Columbia, the judge (almost incredibly) suggested that the controversy caused by the almost certainly false allegations of Emma Sulkowicz, and the resulting complaints that Columbia treated accusers unfairly, was enough to survive a Title IX challenge from the accused. The university could just say it was denying due process to avoid bad publicity, which is legally permissible. In Yale’s case, the fact that the Spangler Reports show that everyone charged isn’t expelled (even though the reports provide no data on the charges’ specifics) would be enough to satisfy Furman’s undemanding test.

It turns out there’s a logical explanation for Yale’s Furman theme in its Montague comments; the university if facing another lawsuit from an accused student (you can read it here), and has relied heavily on Furman to defend its actions. The Furman decision, in fact, provides the lead point in the university’s argument, which you can read here; “Doe v. Columbia Univ. provides an in depth analysis of a Title IX claim attacking university disciplinary proceedings on the ground of gender bias,” the university’s lawyers maintain. Yale then spends nearly five pages recapitulating Furman’s decision—which of course has no precedential value. Strikingly, the university brief neglected mention of a more recent “in depth analysis of a Title IX claim: within the 2nd Circuit states (Prasad v. Cornell). Yale also didn’t see fit to mention the Middlebury case, which was also more recent than the Columbia affair—and even though it, like the lawsuit the university is defending, involved an instance of a university inquiry that initially occurred in parallel to another inquiry.

The specifics of this case (filed under John Doe) are very different than the Montague case. The two students were both Native Americans, and apparently political rivals within Yale’s Native American student organization. (They came from differing tribes.) Unlike in the Montague case, the accuser here went to the police; the accused student was arrested, and charged with three felonies, including sexual assault. He eventually pled nolo contendere to a misdemeanor charge of unlawful restraint; the sexual assault charge and other felonies were dismissed. After placing him on an administrative suspension, Yale then resumed his disciplinary process and expelled him for sexual misconduct.

Though the student was sentenced only to two years of probation, and the plea will be expunged from his record unless he violates the terms, the existence of the plea inevitably strengthens the university’s position—if the Doe case ever reaches summary judgment, Yale will argue (and probably successfully) that it’s well within its rights to expel a student who effectively admitted in court that evidence existed regarding his misconduct involving another student in a Yale dorm. (The complaint argues, and quite possibly correctly, that the accused student only accepted the plea to make the criminal case go away, but I don’t see how that understandable strategy weakens Yale’s position.)

That said: the case raises three issues that have bearing on the Montague case.

First, the complaint persuasively indicts Yale’s specially-trained University-Wide Committee. (A university spokesperson did not respond to my question about whether Yale will make public the contents of the panelists’ training. I’m not holding my breath.) Despite the general assertion that accused students don’t need the same due process protections as accused criminals because the university disciplinary process has an “educational” purpose, the Doe complaint maintains that the UWC essentially used material from the police file. Yale’s “independent” fact-finder, for instance, relied on police documents rather than an interview of the accuser, as UWC procedures require. This reliance on material from the criminal investigation was selective: the accused student had an impressive list of expert witnesses—including a SANE nurse—but the UWC dismissed them, on grounds that they weren’t cross-examined. (The UWC used this excuse even though the accused student had offered to make the witnesses available for cross-examination.) And the entire process was delayed for around two years, until resolution of the criminal case, despite OCR’s strong encouragement of 60-day adjudication. As in the Amherst case, it seems, the time limitation vanishes when it disadvantages the accuser rather than the accused.

Second, the complaint reinforces two elements from the Montague complaint. Doe, like Montague, portrays Yale as reactive, willing to weaken the rights of accused students, in response to negative publicity. (The complaint notes that Doe was the first student charged with sexual misconduct after the public controversy surrounding the Patrick Witt case.) And as both Doe and Montague were expelled, Doe reinforces the Montague argument that—even assuming the worst-case view of the facts—his punishment was wildly disproportionate. Montague’s accuser never went to the police, and there never was a criminal plea. Yet he suffered the same fate as Doe.

Third, the Doe case and the Montague case both will go before Judge Covello; it’s likely he’ll rule on Doe first. Will the university’s stronger position in Doe create a ruling that effectively hampers Montague’s position? Or will Covello encountering two cases of the UWC operating outside its own rules make him more suspicious of Yale?

A final point: in her letter to the judge in the Brock Turner case, accusers’ rights activist Michele Dauber maintained that a longer sentence wouldn’t really hamper Turner’s life, since, after all, he’d still probably be out of prison at age 22, and could then just complete his college education. She didn’t say where. I certainly couldn’t imagine someone with a sexual assault conviction on the sex offender list being admitted to Brooklyn. I’m sure Dauber wouldn’t want Turner re-admitted to Stanford after he served his time.

In fact, in the current environment, the chances of Turner getting a degree from anything but an on-line school like the University of Phoenix are virtually zero. In the Yale case, the student’s only criminal record was a plea to a misdemeanor offense unrelated to sexual assault. But because Yale expelled him for sexual misconduct, he’s essentially out in the cold. This student—admitted to Yale, with a good GPA while at Yale, and with the admissions benefit of being Native American—has applied to 28 schools that don’t automatically prohibit a student with a sexual misconduct record from transferring. He’s been rejected by most, and has heard nothing at all from the others. Why Dauber chose to mislead Judge Persky about Turner’s likely educational fate is, of course, something only the Stanford Law professor can answer.