A Tale of Two Judges

Beyond the considerable personal, financial, and emotional toll that comes with waging a federal lawsuit, one other item confronts accused students if they decide to go to court—the randomness of judicial assignments. Two cases from last week show how, in most of these cases, the outcome depends almost entirely on the judge to whom the matter is assigned. An indifferent judge will jettison even the strongest of cases. And a conscientious judge will be willing to focus on the key question at hand (the college’s fairness) even in cases where the facts aren’t clear-cut.

For an example of the latter pattern, consider a decision from Judge Tim Ellis, of the Eastern District of Virginia. (You can read Judge Ellis’ opinion here.) The case came out of George Mason, where a student was engaged in a consensual BDSM relationship with a student from another school. The couple broke up, and according to the undisputed record, the male student didn’t take it well. (At one point, he called his former girlfriend to say he’d kill himself unless she spoke with him.) She eventually accused him of sexual assault during their relationship.

George Mason charged the student with two offenses—failing to obtain the accuser’s consent in an October 2013 incident, and violating the university’s then-speech code with his threatening phone call. The problem? The university didn’t seem to initially understand that context of the couple’s BDSM relationship, and by the time the hearing occurred, the panel concluded that the case was too murky to come back with a guilty finding.

Pre-Dear Colleague letter, this decision would have ended the case, but the accuser appealed. At this point, George Mason began a string of procedural violations that prompted Judge Ellis’ decision. Though the appeal was supposed to originate with the chair of the hearing panel, that didn’t occur. The bureaucrat who heard the appeal, Brent Ericson, then had ex parte conversations with the accuser. He decided to effectively toss out the panel’s decision and review the case de novo. And he broadened the allegations to include all aspects of the couple’s relationship, even as the accused student still thought he was only defending against a single incident. By the time Ericson met with the accused student, he already had decided the accused was guilty.

Judge Ellis reasoned that colleges don’t have to provide a perfect amount of due process, but this laughable procedure was far too much. He also offered two important, broader insights. On why these cases are so important, he noted, if an accused student “seeks education or employment with institutions or organizations that require disclosure of [the student’s college] records, [his] only options are to forgo opportunities with those institutions or organizations or to authorize the dissemination of records that would likely foreclose [his] ability to pursue such opportunities because of the allegedly defamatory nature of the records.” It’s important, therefore, for colleges to get the decision right.

Ellis also had sharp words for the exceptionally broad speech code (which has since been repealed) upon which George Mason partially relied to make its case. “Controversial and sometimes offensive ideas and viewpoints,” he wrote, “are central to the educational mission of universities. It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause ‘distress’ or ‘discomfort,’ which is precisely the type of the speech [the GMU] code seeks to suppress.” In short, due process and civil liberties matter, at least in Judge Ellis’ courtroom.

Not so much for Magistrate Judge Terence Kemp, of the Southern District of Ohio. He had before him one of the three most troubling campus cases I’ve seen (along with Amherst and Miami of Ohio) since I started writing about this issue. It involved a former Ohio State student who was pursuing a joint MBA/MD degree. Four months before receiving his MD, he learned that he was being accused of sexual assault by woman with whom he had been briefly involved ten months before. (The allegation was remarkably non-specific: she said she had no memory of events, but was sure she hadn’t consented.)

What he didn’t know—and wouldn’t find out until it was too late: two days before she reported the sexual assault, his accuser had received word that she was going to be kicked out of medical school, for failing grades. Her conveniently timed report (of an incident that she appears never to have mentioned to anyone until her academic career was on the line) allowed her to cite Title IX and demand an “accommodation”—namely, that she be allowed to stay in school. Ohio State’s Title IX bureaucracy supported her demand (even writing a letter describing her as a sexual assault victim before any investigation occurred) and the medical school backed down.

For reasons that remain unclear (but seem not too hard to guess), neither the accuser nor OSU’s Title IX bureaucrats told the investigator in the case about the close timing between the expulsion notice and the rape claim. Not that the investigator, Jeff Majarian, did much digging. One of the witnesses mentioned the academic problems, but Majarian didn’t pursue the matter. Nor did he ask the bar where the two had met if there was a videotape of the night of the incident—as a way of checking the accuser’s intoxication levels. And though his questioning of additional witnesses led to some obvious follow-up questions for the accuser, he elected not to re-interview her. Instead, he prepared a report, which served as the factual basis for the university’s disciplinary hearing.

Panelists at this hearing had received special training from Ohio State. They learned, for instance, that they were to use the preponderance of evidence threshold—which OSU described as “50% and a feather”—and therefore didn’t need a “smoking gun” or even “damning evidence.” OSU also told them that sex offenders “are overwhelmingly white males” and “are experts in rationalizing their behavior.” And that there are a lot of them—as many as 57 percent of “college men.”

The hearing was a farce, both because the accused student didn’t know about his accuser’s possible motive to lie, and because OSU refused to allow his expert witness (an Ohio State pharmacology professor who was going to testify about the accuser’s intoxication level) to testify. The accused student was found guilty and expelled.

When he sued, his case wound up in Magistrate Judge Kemp’s courtroom. Testimony from multiple OSU administrators indicated what could best be deemed an indifference to the truth. Some examples:

Q: Am I stating it correctly that fair also means that you want to try to get the right result?

Title IX coordinator Kellie Brennan: We want to get the result that we can based on the information that we have.


Q: [Brennan’s] job is also to make sure the process is fair, right?

Investigator Jeff Majarian: I don’t know.


Q: And Ohio State has an interest in making sure the hearing panel gets it correct, don’t they?

Panel chairman Matthew Page: I think that procedurally we want to ensure that our board members come to the decision they think is fair based on the evidence they considered.


Q: Do you have any understanding as you sit here today about whether you have an obligation to correct a false statement at a hearing panel?

Sexual Violence Support Coordinator Natalie Spiert: I do not know.


Q: [Do you have] an obligation to make sure that the hearing panel gets it right? …

Spiert: No.

If these, and other assertions, much troubled Magistrate Judge Kemp, it didn’t show—he sided with the university, in a rote opinion suggesting that accused students basically can’t win due process cases. (You can read his opinion here.)

It’s hard to argue that justice was done in the Ohio State case. But if the judge is indifferent to fairness, there’s little an accused student can do.

At Cincinnati, Fairness Is Secondary

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.” Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter how the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories. One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed. The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student that “neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with such inflammatory, unsubstantiated allegations as “the average rapist rapes 14 people before he ever spends a night in jail” or “1 in 4 women will survive rape and/or sexual assault during her time in college”; citations to the discredited David Lisak’s work on undetected rapists; and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement). An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student, then enrolled at UC’s law school, that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness. Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.” But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”) It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexually assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high-schoolers, perhaps parents would be better off sending their children to another university.