The First Circuit and Boston College

Although the Obama administration and its media and campus allies billed their crusade to erode due process for students accused of sexual assault a national one, it’s better seen as more of an elite movement. The rate of allegations is far higher at elite schools (Ivies, top-tier liberal arts colleges, Tier One research universities) where an identity politics atmosphere is especially prevalent. Given the disproportionate number of elite institutions in the states of the First Circuit, it should come as little surprise that the area has featured a disproportionate number of due process cases—Brandeis, Amherst, Brown (three cases), Williams, Holy Cross, Clark, and Boston College, as well as UMass and Western New England.

These cases run the gamut—from Judge Saylor’s opinion in Brandeis, the most comprehensive discussion of why campus due process matters from any judge since the Dear Colleague letter, to the opinions in the Holy Cross and BC cases, which essentially gave the institution carte blanche to be as unfair as they wanted. In contrast to the Second or Sixth Circuits (in different directions), First Circuit precedent regarding campus due process claims is ambiguous and leaves considerable leeway for lower-court judges. For instance, Gorman, a 1980s case, is so vague as to provide almost no guidance at all. The panel held for the university, and cautioned that “the undue judicialization of an administrative hearing, particularly in an academic environment, may . . . prove counter-productive.” But the decision also went out of its way to note that “whether the hearing was fair depends upon the nature of the interest affected and all of the circumstances of the particular case” and “beyond the right to notice and hearing, the span of procedural protections required to ensure fairness becomes uncertain, and must be determined by a careful weighing or balancing of the competing interests implicated in the particular case.”

The BC case could provide more clarity—and seems likely, at least based on the oral argument, to produce a victory for the accused student. With one Appeals Court decision favorable to due process (the Columbia case), one unfavorable but very limited decision, with a strong dissent (the Houston case), and one highly unfavorable decision (the Cincinnati case), the outcome from this liberal circuit could carry considerable weight, beyond its effect on the many colleges in First Circuit states.

The facts of the BC case are unique among the scores of campus sexual assault lawsuits since issuance of the Dear Colleague letter in 2011. In October 2012, the accused student (John Doe, or JD, in pleadings), a senior and a student reporter, was covering a campus cruise run by a minority student organization. As he was walking across the cruise’s dance floor (described as dark, with strobe lights), a female student said that she was digitally penetrated, from behind. She turned around, pointed at JD, and started screaming. At that point, JD claimed that another male student told him, “Sorry, dude, that was my bad.” (At the hearing, this student, identified in the record as JK, would deny making this remark, although post-incident texts cast doubt on his testimony.) Based on the female student’s point, JD was detained by security guards and eventually arrested.

Although it took a year and a half, JD was able to prove his innocence, and the prosecutor dropped all charges. Although he was immediately detained and arrested, without a chance to wash his hands, forensic tests of JD came back negative—which would seem to have been impossible if the accusing student had accurately identified him as the person who penetrated her with two fingers. Second, a video of the dance floor, enhanced by a defense expert, showed JD several feet away from the accusing student at the time the assault appeared to have occurred. JD also passed a polygraph test. His lawyer suggested that if an assault had occurred, JK, the other male student, was the perpetrator.

The investigation at Boston College, however, took a different course. The initial report on the incident, prepared by a campus police officer, inaccurately asserted that JD and the accuser were dancing, and that the accuser saw JD assault her. In her first discussion with JD, Dean Carole Hughes refused to hear his pleas of innocence, and so didn’t learn of JK’s existence until the day before the hearing was scheduled. (This refusal would become important to the First Circuit.)

The college investigation consisted solely of interviewing the parties and a handful of witnesses; BC did not wait until the police completed their forensic investigation, nor did they wait until an enhanced version of the dance-floor video could be prepared. The panel also refused to hear from the private investigator that JD’s lawyer had hired. It did, however, hear from JK—who received immunity from the college, but who Dean Hughes told the hearing panel to put “at ease” in his testimony. The disciplinary hearing occurred less than three weeks after the incident; a partition separated the two parties. BC elected not to record the hearing, and so no transcript exists.

JD was found guilty—though, oddly, not of what the accusing student claimed he did. On a Friday, after deliberations, panel chair Catherine-Mary Rivera informed Dean Hughes that her panel was considering returning a “no finding” verdict. Hughes discouraged this course, even though deliberations of the panel were supposed to be “private.” Rivera denied passing the dean’s recommendation on to her colleagues, but the following Monday, after resuming deliberations, the accused student was found guilty. He did not learn of the dean’s intervention until discovery from his lawsuit.

At first blush, JD appeared to have been cleared, since the panel concluded that it seemed “less likely than not” that the “perpetrator achieve[d] penetration”—despite the accusing student consistently saying her attacker had done so. (Her attacker’s “entire two fingers” penetrated her “all the way,” she said; it was “painful,” and “[i]t really hurt when he did it.”) The panel instead found JD guilty of “indecent assault and battery,” an offense for which he had not been charged and which the accuser had not alleged. This language, it came out in discovery, was recommended by BC’s counsel, not by the board itself.

The panel recommended a three-semester suspension, which JD served. He eventually graduated from BC; upon graduation, the family received a commitment from BC’s president that he would re-examine the facts of the case. The president’s designee concluded that the DNA evidence, the videotape, and the polygraph did not “justify a reconsideration of this case.” Though the lawsuit alleged that this non-review further indicated BC’s unfairness, neither the district court nor the Appeals Court seemed interested.

JD’s lawsuit was assigned to Judge Denise Casper, an Obama nominee. In October 2016, she sided with BC in a motion for summary judgment. Casper argued that nothing in BC’s procedures required the BC police to conduct an investigation (as JD had claimed), or for the university to wait for forensic testing or the enhancement of the video to occur. Anyhow, this refusal was irrelevant, according to Casper, since the video evidence was “ambiguous,” and “the proffered forensic evidence would not have been exculpatory given the nature of the charge or the board’s finding of indecent assault and battery.” Casper did not discuss the problem of why the board chose to disbelieve the accuser on the critical aspect of her testimony (how she was assaulted) but believed her on the identity of someone who, according to her own testimony, she never saw committing any offense.

The judge admitted that JD never received notice that he could be found guilty of “indecent assault and battery,” but concluded that as JD’s defense against this allegation was basically the same as his defense against the sexual assault allegation (someone else did it), BC hadn’t breached its contractual obligations. And it’s true, the judge conceded, that after seeing all the evidence, including material the BC panel never had, prosecutors dropped all charges, but since the university used a preponderance standard, this decision from the criminal justice system was irrelevant. Discussions had occurred between a member of the hearing panel and BC administrators during the deliberation process, but Casper contended that this administrative pressure didn’t color the final decision. Finally, she dismissed JD’s Title IX claims by arguing that nothing in BC’s conduct suggested gender bias; and deemed the process a fundamentally fair one.

Casper took a very narrow view of BC’s contractual obligations—as long as the college provided JD with notice of the charges (it did), a hearing (it did), and a tribunal he couldn’t prove was biased (it did), she would “not second guess the thoroughness or accuracy of a university investigation.” She was, however, remarkably non-curious as to why an institution of higher learning would appear indifferent to exculpatory evidence, and her vision of “fairness” was fundamentally different than Judge Saylor’s in Brandeis. And her arguments that BC was in the clear on Title IX because its policies were nominally gender neutral (the policy’s description of accusers as “survivors,” Casper noted, did not specify the gender of the “survivors”) and because BC didn’t find every accused student guilty would block virtually any accused student from filing a Title IX claim.

JD’s appeal, citing the wide gap between the Brandeis and BC decisions, framed the question bluntly, “What level of judicial scrutiny is appropriate for review of federally-mandated rape investigations and trials held at private colleges and conducted by administrators, faculty, and students?” (JD’s appellate brief is here; the school’s response is here.)

Yesterday, oral argument took place, before Judges Juan Torruella, Bruce Selya, and William Kayatta. With the caveat that after the UCSD oral argument, it’s impossible to predict how a panel might rule on a campus due process appeal, the hearing was a disaster for BC, the 180-degree opposite of the infamous 6th Circuit panel in the Cincinnati case.

Charles Wayne argued for JD; after a somewhat hesitant start, he closed very strongly. The only skeptical questions he received  came when he asserted the district court should have granted JD summary judgment. The judges seemed disinterested in the fundamental fairness argument that played such a role in the Brandeis decision; they seemed more focused on JD’s breach of contract claims.

The opening few seconds of Daryl Lapp’s appearance for BC previewed things to come.

 

When the panel settled down, Judge Selya noted that parts of the complaint dealing with a breach of contract claim, such as the promise that disciplinary panel deliberations be private, had made an “initial impression” on him:

 

Judge Kayatta offered a series of skeptical questions (quite unlike the Sixth Circuit Cincinnati panel, none of the judges had anything supportive to say about BC). He quoted emails from Rivera to Hughes, which strongly implied a violation of the privacy of the board’s deliberations (Lapp claimed the emails were “very cryptic,” though what Kayatta read didn’t seem too cryptic to me):

 

Kayatta also wondered about Hughes’ instructions to put JK “at ease,” which seemed to send a message that JD’s defense (JK did it) shouldn’t be believed (Lapp deemed this an “innocuous comment” that had no effect on the outcome):

 

And he extended Lapp’s appearance by asking a final question regarding the board’s odd decision to not believe the accuser’s claim of what happened to her:

 

Faced with a barrage of tough questions, Lapp had his work cut out for him, but at several points he seemed to concede points to the panel. This exchange involved the allegation of improper interference by Dean Hughes:

 

This exchange with Judge Torruella, near the end of the oral argument, involved the relationship between fairness and excluding exculpatory evidence:

 

Lapp’s discussion of Hughes’ refusal to hear JD’s defense at their initial discussion appeared to misstate BC’s policies:

 

Judge Selya wondered if Lapp used the wrong standard to describe summary judgment:

 

And here Selya rebuked Lapp for an evasive response:

 

Both Selya and Kayatta seemed particularly concerned with Dean Hughes’ conduct in the case; Torruella was mostly quiet, except for his questions about excluding exculpatory evidence. The tenor of the questions strongly hinted the panel would reverse the district court’s summary judgment in favor of BC and remand the case for trial. We’ll see, when the opinion appears.

 

The 5th Circuit Opinion

During her four years at the helm of the Office for Civil Rights, Obama appointee Catherine Lhamon gave no sign that she was aware of the wave of due process lawsuits filed by students accused of sexual assault. So it was more than a bit jarring to see Lhamon tweet that “yet another fed court—5th Cir[cuit]—ruled that students disciplined for sex misconduct were not denied due process.”

The “yet another” formulation was particularly odd, given that more than 50 federal or state courts, in preliminary or final rulings, have held in favor of students accused of sexual assault. Was Lhamon implying she was unaware of these decisions? And, if so, what does that say about the bubble in which she operated at OCR? Perhaps she would have been better-served to have taken the meeting—which she initially refused—with FIRE.

More generally, the 5th Circuit opinion did little to advance Lhamon’s cause of eroding due process protections for accused students. The suit, filed by two students at the University of Houston, departed from the norm; of the 170 or so due process lawsuits filed since the Dear Colleague letter was issued in 2011, these two plaintiffs (then dating, now married) seem to have the least claim to a wrongful finding on the facts.

That background—that the accused students probably were guilty—proved critical to the case. Writing for the majority, Judge Stephen Higginson (an Obama nominee) deferred to Houston’s judgment. But he did so in a way that all but cabined his holding to cases where the accused student couldn’t make a plausible claim of innocence. “The unique facts of this case,” he maintained, “render it unnecessary that we draw any determinative line regarding sufficient procedures in state university disciplinary cases.” A bit later, citing the important Columbia case from the 2nd Circuit, Higginson detected a “stark contrast” between the Houston case, and others, featuring “allegations of student innocence.”

The 5th Circuit decision was also the first Appeals Court due process decision to produce a dissent. The Columbia case was decided 3-0 for the accused student; the deeply troubling Cincinnati case—where the judges did actually embrace Lhamon’s anti-due process agenda—was 3-0 for the school.

The dissent came from Judge Edith Jones, who described the Houston case as “the canary in the coal mine” about the loss of rights for accused students. Dismissing her colleagues’ basic argument (that because the accused students “were guilty, they got enough due process”), she faulted the panel for not examining the “background” to the Houston case—the efforts of the Obama administration’s OCR. Jones noted how the Dear Colleague letter, adopted without going through the notice-and-comment process, featured an “extremely broad definition” of sexual harassment and urged procedures that were “heavily weighted in favor of finding guilt.” Given that Houston “largely tracked” OCR’s mandates, rather than developed its procedures out of academic deliberations, Jones correctly noted that the university’s actions deserved no deference because of its character as an academic institution.

It was little surprise, then, that the Houston procedure was structurally unfair. Jones recommended that colleges and universities distinguish between the investigation and adjudication process, raise the standard of proof to clear and convincing evidence, and allow full legal representation for accused students. None of these changes, Jones observed, would “significantly impede the disciplinary process.”

Jones’ conclusion: “The University wants to have it both ways, degrading the integrity of its factfinding procedures, while congratulating itself for vigorously attacking campus sexual misconduct. Overprosecution is nothing to boast about.” Given that the majority framed its holding so narrowly, it had no real response to this point.

Degrading integrity of procedures and overprosecution were hallmarks of Lhamon’s tenure at OCR. Perhaps next time she tweets a due process decision, she’ll read the entire decision, and dissent, rather than just a summary.

Nifong Ethics Trial

This week was the tenth anniversary of the ethics hearing that culminated in Mike Nifong’s disbarment for ethical misconduct in the Duke lacrosse case.

On my twitter feed, I had posted some of the highlights, and reproduce them below:

Day One

Bar prosecutor Katherine Jean summarized the allegations:

Collin Finnerty’s lawyer, Wade Davis, recalled Nifong’s contempt when Kirk Osborn tried to outline Reade Seligmann’s alibi at an early hearing in the case:

In perhaps the most explosive testimony of the proceedings, DPD officer Ben Himan recounted his first meeting with Nifong, at which the DA acknowledged, with an expletive, the case’s weakness privately, even as he took the opposite approach in his pre-primary public comments:

 

Day Two

A taste of the testimony style of Dr. Meehan—labeled by the tribunal chair “Mr. Obfuscation”:

Dr. Meehan attempted to explain how his DNA might have wound up on the rape kit:

 

Day Three

Brad Bannon explained how he came to discover that Nifong had lied about exculpatory DNA evidence:

Bannon recalled an…unusual…conversation he had with Nifong, when the defense lawyers approached Nifong about his concealment. This conversation appeared in the draft version of William D. Cohan’s revisionist book defending Nifong, only to be deleted before the book went to press. Perhaps making this conversation look good for Nifong exceeded even Cohan’s skills as a propagandist:

Bannon explained why Nifong’s ethical misconduct made Roy Cooper’s innocence declaration so important. This section also

Day Four

Under questioning from State Bar prosecutor Doug Brocker, Nifong tried to claim all the lacrosse players weren’t really suspects, even though his office had obtained a court order saying precisely the reverse:

Tribunal chair Lane Williamson pressed Nifong on his stated “old-fashioned” desire to prosecute the case based solely on Crystal Mangum’s changing tales, ignoring the exculpatory DNA evidence:

On the stand, Nifong admitted that he didn’t read the letters or discovery requests that came in from the defense attorneys:

Sealing his fate, Nifong—without pointing to any evidence—claimed that “something” (nonsexual) happened:

Day Five

Lane Williamson was at his best, noting the apparent lack of an “ethical dimension” in Mike Nifong’s psyche:

Williamson pressed Nifong’s lawyer on why the DA seemed so disinterested in exculpatory evidence:

In an extemporaneous, wonderfully structured address, Williamson explained the rationale for the committee’s decision to find Nifong guilty:

 

Cohan, Embittered

Imagine the humiliation a few years back experienced by author William D. Cohan. His book on the Duke lacrosse case was panned by virtually every reviewer who knew anything about the case. He then optioned the laboriously written volume to ESPN, only to see the resulting “30 for 30” documentary categorically reject his conspiratorial thesis: that the real hero of the lacrosse case was Mike Nifong, and that “something” happened (but Cohan wouldn’t say what) in the lacrosse captains’ bathroom that in some way corroborated one of Crystal Mangum’s myriad, mutually contradictory tales (Cohan wouldn’t say which one).

With his book’s chief sources being a convicted liar and a convicted murderer, who could have guessed that Cohan would have gotten the story spectacularly wrong?

When the “30 for 30” documentary appeared, Cohan penned a bitter essay, crystallizing the errors of his book into short-form. Now he’s back, using the excuse of Stephen Miller’s prominence (well after other, more thoughtful writers had explored the same issue, from the same general ideological perspective) to again slime the lacrosse players.

The essay’s most remarkable disconnect from the facts is this: “Based on Mangum’s allegations and her subsequent absolute identification of her alleged assailants after reviewing their photographs on a computer, a Durham County grand jury indicted the three—David Evans, one of the senior co-captains, and two sophomores, Reade Seligmann and Collin Finnerty—on criminal charges of first-degree rape, sexual assault, and kidnapping.”

Mangum, in fact, identified four people in the April photo array (her second time looking at photos of most of the lacrosse players). Only two of her IDs, not three (as Cohan implies) or four (as she made) were “absolute.” The only problem with her “absolute” IDs? They were provably false, though photographic, testimonial, and electronic evidence. The photo below is of Seligmann, at the time the “attack” allegedly occurred.

Reade_Seligmann_ATM_photo_2

Even in Durham, it’s not possible to be in two places at once.

As for the Evans ID—even Cohan hero Mike Nifong didn’t consider it “absolute” enough to seek an indictment immediately. The actual identification, unrevealed to Vanity Fair readers? Mangum was 90 percent certain that Evans attacked her, with one caveat—he had a mustache on the night of the attack. But photos taken from the night before and the day after showed him with no mustache.

And the “absolute identification” that Cohan celebrates in this ostensibly liberal essay? Nifong had ordered the Durham Police Department to violate its own procedures and confine the photo array to white members of the lacrosse team. There were no fillers, and thus no wrong answers for Mangum. Do Vanity Fair readers (and the magazine’s editorial staff) believe that other police departments should use this type of identification procedure? This type of abuse is far more likely to be directed against African-Americans or Hispanics. It’s interesting that Cohan elected not to share with Vanity Fair readers the procedures used to produce his cherished “absolute identifications.”

There was one lacrosse player that Mangum identified, with 100 percent certainty, as having seen at the party. The only problem? He was able to prove he wasn’t even in Durham County the night of the party. Nifong knew of the faulty identification and still went ahead with indictments.

Cohan’s embrace of a transparently rigged procedure is consistent with his book’s more general contempt for civil liberties, and in particular for prosecutors and law enforcement following procedural norms. Here’s another example: “On March 23, at the detectives’ request, a local judge issued a non-testimonial order, or NTO, requiring the white lacrosse players to submit DNA samples to the Durham police. (The players’ attorneys had previously blocked the police’s request to provide the DNA voluntarily.)”

One of the students’ attorneys had objected to the Durham Police Department’s desire to interrogate the students outside the presence of counsel (something Cohan conveniently doesn’t mention—does he believe criminal suspects should chat with the police without their lawyers present?); they were willing to negotiate about interviews in the presence of counsel, a prospect that didn’t interest the DPD. Nifong’s office then sought the NTO, requiring all the white lacrosse players to give DNA.

No justification existed for such a broad NTO, since at that point in the case, the Durham Police Department had no idea how many of the lacrosse players attended the party. The demand, therefore, might have been beaten back in court—but the lacrosse players’ lawyers explicitly chose not to fight the order. They represented innocent clients, and they also recognized under North Carolina law, not fighting the order ensured that Nifong would need to hand over to them the full results of all tests done from material obtained from the NTO. It was Nifong’s decision to conceal this evidence, and his lying to the judge about his concealment, that set into motion his undoing.

More abstractly: Do Vanity Fair readers (and the magazine’s editorial staff) believe that other prosecutors should be able to use group identity as sufficient cause to obtain a citizen’s DNA? This type of abuse is far more likely to be directed against African-Americans or Hispanics.

The rest of the essay’s discussion of the case mostly consists of character assaults on the lacrosse players, embedded within a lengthy, almost voyeuristic, recapitulation of what Cohan sees as the worst elements of the lacrosse players’ spring break party. He repeats his inaccurate claim that the falsely accused players each received a $20 million settlement from Duke. (As in the book, he seems remarkably non-curious why Duke would have been willing to part with approximately $20 million total, not $20 million apiece, if the university weren’t highly vulnerable to a lawsuit.) Even though Nifong exploited the case in a desperate, and ultimately successful, effort to maximize the black vote in both the Democratic primary and then in an unexpectedly competitive general election, Cohan fantasizes that if the races of the parties were reversed, in the particular context of Durham, spring 2006, the case would have gone to trial—even though Nifong never would have had a political motive to have become involved in the case at all.

As he did in both the book and especially in his 2014 book-related publicity appearances, Cohan uses the Miller essay to imply that former Duke Trustees chairman Robert Steel supports his conspiracy-laden thesis. Yet Steel, in a 2014 e-mail to Stuart Taylor and me, repudiated Cohan’s efforts: “I have no view now, nor have ever had a view of what if anything happened in the bathroom. Period.”

Here’s what Cohan has to say about Miller, the ostensible subject of his screed: “A columnist for The Chronicle, the Duke student newspaper, Miller defended the lacrosse players in print, despite nearly universal condemnation of them by others on campus and in the media.”

Whatever you think of Miller’s politics (and I don’t think much of them), isn’t this record a good thing? A student commentator, facing a campus environment of “nearly universal condemnation” (at least among the faculty and administrators), stood up for due process—and was ultimately vindicated, when the case constructed by Mike Nifong collapsed.

In his long essay, Cohan couldn’t find room for one word: “innocent.” That’s the evaluation of the case by then-North Carolina Attorney General Roy Cooper, after SBI investigators and two senior attorneys from his office comprehensively investigated the case.

According to Cohan, at 2.36 of the video above, the attorney general only “declared the three lacrosse players not guilty.”

Miller, whatever you want to say about his current politics, got the case right. Cohan got it wrong. No amount of intemperate Vanity Fair essays will alter those facts.

Specifics & Narrative

The Washington Post’s Monkey Cage blog has a piece up today—by UNC political science professor Frank Baumgartner and one of his students, Sarah McAdon—examining how media coverage of campus sexual assault has changed in recent years. Their general point seems correct: that the mainstream media, at least, and especially the Post and the Times, has devoted less coverage to individual cases and more to broad, impossible-to-verify statistics. Put another way: the media has chosen a narrative (that a campus rape epidemic exists) and haven’t looked too hard at individual cases that might complicate or even contradict the narrative.

To Baumgartner and McAdon, this shift seems like a good thing—a “sea change” that “has the potential to re-frame how the public sees the issue, shifting it from one in which sexual assault appears as an aberration to one that acknowledges the suffering of victims of these crimes even more than does news coverage of occasional cases.”

Armed with such a bias, perhaps it’s unsurprising that their op-ed shows bias itself. First, here’s how the duo describes the lacrosse case: “In 2006, a woman accused members of the Duke lacrosse team of sexual assault, but the three players who went to trial were found not guilty.”

Of course, the three falsely accused students were declared innocent, a far higher standard than a “not guilty” finding—after an investigation by then-North Carolina attorney general Roy Cooper. (Cooper is now the state’s Democratic governor.) It’s not clear why Baumgartner and McAdon believe a trial occurred in the lacrosse case, and why they chose to describe an innocence declaration as a not-guilty finding.

A bit later in their op-ed, the duo make the following point, to confirm the prevalence of the problem and support their assertion that universities under-report sexual assaults: “More recently, a 2016 Bureau of Justice Statistics study found that 21 percent of female students currently in college reported being assaulted in college.”

The BJS is a problem for campus rape activists, since the bureau’s major study of the issue—one actually done by BJS employees—shows a far, far lower rate of sexual assault of college students than the Obama administration’s preferred figure. The 2016 study (of nine schools) that Baumgartner and McAdon cite, by contrast, was funded by the BJS, but was not performed by BJS researchers.

It included the following caveat: “Any opinions and conclusions expressed herein are those of the author(s) and do not necessarily represent the views of BJS and the U.S. Department of Justice.” Why, then, did Baumgaertner and McAdon cite the material as a “Bureau of Justice Statistics study”? Perhaps for the same reason they erroneously described the lacrosse case’s resolution.

Focusing on the narrative, rather than the specifics, does have its flaws.

[Update, 12 May, 7.42pm: Earlier today, I contacted the Post corrections desk, noting the two errors in the MonkeyCage item. A few hours later, one correction was made. The erroneous claim that a study that does “not necessarily represent the views of BJS and the U.S. Department of Justice” nonetheless qualifies as a BJS study remains. The claim about a non-existent lacrosse trial was removed, but replaced with this curious wording, with the correction in italics:  “In 2006, a woman accused three members of the Duke lacrosse team of sexual assault, but the charges were dropped when an investigation found no credible evidence.”

Oddly, the correction still refused to admit that the players were declared innocent by the state’s attorney general. But even odder was the added link. The authors linked not to news coverage of Attorney General Cooper’s April 2007 announcement that he was dropping charges because the players were innocent. Instead, they linked to an article published more than eighteen months later, published by the New York Times. Its headline? “North Carolina: Attack Claim Repeated.” The article described publication of false accuser Crystal Mangum’s memoir.

Linking to a lie is an unusual strategy for a “correction.” It seems as if the authors wished to be defiant in their bias.]

 

 

 

Key Amherst Decision

Of all the campus cases since the Dear Colleague letter, the Amherst case is the worst. This case featured a student (JD) who not only could use his accuser’s own words to prove his innocence, but could demonstrate from the college’s own findings that he was, plausibly, a sexual assault victim—and yet the college culminated a biased process by expressing disinterest in his evidence. If Amherst could get this lawsuit dismissed, it would be hard to imagine any set of facts in which an accused student could be certain of prevailing.

On Tuesday, however, Judge Mark Mastroianni, an Obama appointee, allowed the lawsuit to proceed. You can read the decision here. I’ve written extensively about the Amherst case, and also the May 2016 hearing that led to the ruling. Robby Soave also has an excellent summary of the ruling.

The ruling keeps alive all of the core elements of the lawsuit—the breach of contract claim that Amherst didn’t even follow its own rules; the good faith/fairness claim; and the Title IX claim. Mastroianni allowed multiple aspects of the Title IX claim to proceed, including a claim of deliberate indifference for Amherst’s unwillingness to investigate the accusing student (who I’ll call A.S.) for possible sexual assault. He also seemed to anticipate that at the next stage of the case, Amherst would try and get around the breach of contract claim by suggesting that the student handbook wasn’t a contract.

The only major claim he dismissed was JD’s racial discrimination claim, with the judge noting that no specific evidence existed to corroborate the claim. This is true. It’s also true that Amherst’s own sexual assault policy Oversight Committee was the organization that initially made the claim, “despite,” Mastroianni noted, “being unable to document past instances of racial disparities in disciplinary proceedings.” (The committee’s “evidence” focused around a claim that white students would find it easier to hire lawyers.) The judge didn’t explore what it said about Amherst’s overall procedural unhealthiness that an important sexual assault committee could offer fact-free musings based on nothing more than stereotypes.

Most of the ruling was what could have been expected given the strength of the claim. But two aspects of the ruling stood out as a bit surprising.

Judge Mastroianni’s Impressions

There’s little reason to believe that Mastroianni was eager to make this decision. In a case at UMass, he sided with the university, despite ample grounds for doubting UMass’ fairness. In this case, he waited nine months (and a day) after the hearing in the case to render his decision, which cited every recent 1st District campus sexual assault decision but one—the Brandeis opinion written by Judge Saylor. Saylor’s was, by far, the most comprehensive sexual assault opinion in explaining the shortcomings of a college or university disciplinary process, and the opinion was extensively discussed (by both sides) in the May hearing.

Mastroianni didn’t explain why he didn’t cite the Brandeis opinion. But at the very least, his choice suggests a judge who isn’t eager to vindicate the rights of accused students. That background makes all the more remarkable some of the passages from Mastroianni’s opinion, with emphasis added in each case.

Here’s how he described A.S.’s behavior on the night in question: “In the course of the text message exchange, [A.S.] stated that she ‘fucked’ Doe and proposed lying to others about what happened, expressing concern about the fact that others, including RM, had seen her kissing Doe in the common room, and her belief that Doe ‘was too drunk to make a good lie out of shit.’”

Here’s how he described JD’s approach to the hearing: “Doe relied on the investigation conducted by [Allyson] Kurker as he prepared for the hearing. No College employees, including his advisor, Torin Moore, Assistant Dean of Students and Director of Residential Life, advised him to conduct his own investigation. Indeed, based on his conversations with Moore and [Title IX deputy coordinator] Mitton Shannon, he believed a confidentiality policy prevented him from conducting his own investigation or even seeking emotional support from other students. Doe had no knowledge or experience with disciplinary hearings, let alone the experience or knowledge necessary to effectively advocate on his own behalf, and he was emotionally distraught.”

Here’s how he described the hearing and the omission of the key evidence: “Twice during the hearing, references were made to [A.S.]’s text message exchanges after Doe had left her room; text exchanges that were not obtained and reviewed by the investigator or otherwise presented to the Hearing Board . . . Jones was not asked to produce the text messages.”

And here’s how he described the text messages: “The text messages [A.S.] and DR exchanged directly discuss the interactions between [A.S.] and Doe. On their face, the text messages suggest that [A.S.] viewed herself as the initiator of the sexual activity. They also include expressions of hatred of Doe, initiated by DR, to which [A.S.] agreed . . . These texts can be read in a way that raises additional questions about the credibility of the version of events [A.S.] gave during the disciplinary proceeding against Doe.”

To be sure, Mastroianni noted that “at this stage in the litigation, the court must accept as true the factual allegations made by Doe and must make any reasonable inferences favorable to his position.” But this is a very unusual case, given the volume of information provided in the complaint. (Representing an innocent client broadened the tactics open to JD’s legal team.) JD’s lawsuit included all the evidence Amherst possessed (or should have possessed) to adjudicate his case—the hearing transcript, the investigator’s report, the text messages. The “facts” as presented by JD—and as described above by the judge—are unlikely to change later in litigation.

Of course, judges can and do find for colleges even when they believe the accused student might be innocent. (Recall the Case Western Reserve case.) But the fact that Mastroianni appears to have formed accurate impressions about many of the key facts in the case can’t be seen as a good sign for Amherst. That these passages came from a judge who didn’t appear ideologically inclined to side with the accused student makes them all the more powerful.

A.S.’s Record as an Accusers’ Rights Activist

In allowing the Title IX portions of the lawsuit to proceed, Mastroianni avoided any mention of the important 2nd Circuit Columbia case. That decision suggested that a frenzied campus atmosphere (which Amherst experienced to an even greater degree than Columbia) could in and of itself provide the necessary baseline to allow a Title IX complaint to survive a motion to dismiss. As with the omission of the Brandeis decision, Mastroianni appears to have chosen to ignore the most favorable decisions for accused students.

Instead, Mastroianni relied on two other “credible anecdotal references” to sustain the Title IX complaints. First was the fact that, according to the disciplinary panel’s own findings, JD was blacked out at the time A.S. initiated sex with him, thus rendering him incapable of consenting, but Amherst never investigated the accusing student for sexual assault. Second was A.S.’s record as a campus accusers’ rights activist.

As Mastroianni explained, the complaint “also alleges that at the time [A.S.] filed her complaint she was involved in a student-led movement to compel the College to change the way it handled sexual assault allegations, including by expelling a male student accused of sexual misconduct. He further asserts the College was actively trying to appease the student-led movement and was aware both [A.S.] and LR were involved with the student-led movement.” In fact, the opinion (in various ways) references A.S.’s involvement in the campus accusers’ rights movement four times.

In the process, Mastroianni gave unusual attention to a document that received comparatively little attention in the briefings, and virtually no attention in the May oral argument—JD’s internal appeal at Amherst. You can read the document here, and Amherst’s cursory rejection of the appeal here.

In the appeal, JD brought attention to remarks that A.S. made after the hearing panel rendered its decision. The remarks themselves are blacked out, but A.S. did have an interview with the Huffington Post that was published as the college was considering the appeal. In a passage that could easily be read as a pressure tactic against the college, A.S. told Tyler Kingkade, “The typical laptop thief is suspended for five semesters. Rapists are not suspended for that long, if at all. No rapist convicted by a hearing board has been expelled from Amherst in 20 years. That’s unacceptable and something Amherst has to change immediately.” Kingkade did not identify A.S. as an accuser in a pending sexual assault appeal.

JD noted that two of his witnesses—seeing A.S.’s comments—recognized that the zeal with which she advanced a broader accusers’ rights agenda might well have given her a motive to lie. But Amherst denied the appeal, suggesting, “Whatever broad political agenda [A.S. and LR] may have had or not is immaterial to the panel’s decision.” Imagine the reaction of an Amherst professor if a student made that sort of argument about evidence in a research paper.

By establishing as central to the case A.S.’s accusers’ rights activism—particularly at the time of the hearing panel’s decision—Mastroainni’s opinion undercut the already extremely dubious rationale by which Judge James Robart not only denied JD an opportunity to depose A.S., but allowed A.S. to avoid producing relevant documents.

In the subpoena, JD asked for, among other things, “all communications, including text messages or emails, between you and anyone else on February 5, 2012”; “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.”

Robart quashed the subpoena first by suggesting that being deposed and (to a lesser extent) having to turn over documents would traumatize A.S.—though, of course, if A.S. filed a false accusation, it’s hard to see why the trauma from having to re-live that unfortunate decision would be relevant. Second, Robart claimed that Amherst officials could supply all the relevant material—though, of course, many of the documents that JD requested would never have come into the possession of Amherst officials.

Now that Mastroainni has placed A.S.’s contemporaneous accusers’ rights activism front and center, Robart’s claim that A.S. would possess no relevant information is unsustainable. The circuitous reasoning of his initial decision to quash the subpoena makes it entirely possible Robart will refuse to back down. But given that Mastroainni’s opinion suggests that it’s plausible, based on the facts before the court, to deem A.S. a possible perpetrator of sexual assault, perhaps it’s time for Robart to drop the trauma claim.

To date, Mastroainni’s important decision has received no mention in the Amherst student newspaper.

Latest News from Williams

The lawsuit against Williams, about which I have written previously, was delayed until the accused student exhausted his appeals at the college. The result: the college granted his appeal. It remanded the case to the original hearings panel—which promptly found him guilty again. The result was an amended complaint, which you can read here.

A quick summary of the case, which operated on three levels:

(1) Both parties to the case were unappealing. But unappealing students deserve fair treatment just as much as appealing ones.

(2) The accuser was a Williams employee, but received kid-gloves treatment throughout by Williams—in a way that would have been inconceivable if the employee were a man and the student he allegedly mistreated a woman.

(3) The employee had a pattern of filing what appear to have been retaliatory complaints against the student. Williams not only refused to treat the complaints as retaliatory, but refused to consider the effects of the first complaint’s failure on the employee’s credibility for the second complaint.

Beyond the troubling elements from the original complaint, the amended complaint raises four new areas of concern with how Williams handled the case:

(1) Credibility issues don’t matter, at least when the accuser’s credibility is in question. The involvement of Williams’ disciplinary process in this couple’s relationship came after a fight at a party (when the employee slapped the student). The employee (who risked losing her job if the student reported her) then claimed that she had written course papers for the accused student. He was charged with violating Williams’ academic rules—but was eventually found not guilty.

It would seem obvious that having falsely accused her ex-boyfriend of improper behavior once would weaken the employee’s credibility in any other claims she made about her ex-boyfriend. That’s especially so in a case like this one. The employee initially charged the accused student with cheating (after she slapped him). Then, after he charged her with stalking, the employee filed a complaint that he had “displayed abusive behavior” in their relationship. Only in the midst of that investigation did she file a sexual assault complaint—about an incident in which there were no witnesses, and that (by her own admission) came on one night in the middle of the relationship, with no impact on the relationship.

The Williams disciplinary panel in the sexual assault case not only elected not to connect the accuser’s refuted allegation with the sexual assault case, it tried to revive her credibility. It conceded the accused student wasn’t guilty of academic misconduct—despite the employee’s claim (after slapping him) to the contrary. But it added that there was not “a preponderance of evidence to suggest that [the employee] falsely accused you, as it is possible she believed she had written papers for you.” [emphasis added]

This is an extraordinary statement. In trying to prop up the employee’s credibility in the sexual assault case, the Williams panel portrayed her as delusional—someone who might have “believed” something that even Williams conceded wasn’t true. If the panel conceded that (at best) the employee was delusional, how could it credit her claim about sexual assault? Williams hasn’t said.

(2) Playing fast and loose with sexual assault definitions. The original panel found that it was at least 50.01 percent certain that the accused student hadn’t obtained “affirmative consent” for sexual intercourse one night in the middle of a nearly two-year relationship. For the 2015-2016 academic year, Williams had redefined sexual assault to include an “affirmative consent” provision (which effectively requires the accused student to provide his innocence). The only problem: the incident for which the accused student was charged occurred in October 2014, or before Williams dramatically expanded what constituted sexual assault. At the time, Williams required what it described as “effective” consent, a regime in which “both parties have the obligation to communicate consent or the lack of consent.”

Williams’ appeals officer admitted that “the two policies are different, including with respect to the requirement for affirmative consent.” She therefore granted the accused student’s appeal and remanded his case to the original panel—which promptly found him guilty again, on grounds that he had not obtained “effective” consent. In other words: the same hearing panel that initially found the accused student guilty essentially substituted “effective” for “affirmative” in its judgment despite the substantial difference between the two standards. (The wording changed from it was “more likely than not [the accused student] did not have affirmative consent to sexual intercourse with” the employee to “it was more likely than not that [the employee] did not provide effective consent.”)

The issue of colleges finding students guilty of standards adopted after the incident in question has appeared with disturbing regularity—most recently in cases at Brown and Western New England. Williams tried to get around any legal problem by claiming that its pre-affirmative consent standard “used other language . . . to express the same concept.” This is very similar to the argument that Brown offered, unsuccessfully, before Judge Smith.

(3) Limiting information. Williams hires an “investigator” to conduct initial interviews; the “investigator” then prepares a report for the hearing panel. The accused student asked for transcripts of interviews conducted by the “investigator” in his case—Allyson Kurker, whose notorious performance in the Amherst case raises questions as to why Williams would have hired her.

Williams initially promised the transcripts, but then turned over only the transcripts for two of the three interviews with the accused student. The rationale? “The college procedures do not provide for giving interview transcripts to the parties to a sexual misconduct disciplinary proceeding. The interview transcripts are not routinely provided to the college.” Why wouldn’t a college like Williams want to provide an accused student with this obviously relevant information?

(4) Reports from a Williams whistleblower don’t inspire confidence. The amended complaint includes several quotes from a pseudonymous source who says that he had served in college disciplinary cases. He reported that the training Williams panelists received was “not comprehensive by any stretch of the imagination, not even close,” and that panelists were taught that “the reputation of the college is the number one priority,” to such an extent that Williams “makes things up as it goes along.”

Williams’ next filing is due on March 10.