Updates from Brown and Cincinnati

Beyond the hearing in the Amherst case, discussed below, two recent developments on the due process front.

The first came from Brown, where Judge William Smith entered a restraining order forbidding Brown from suspending a student its internal processes had deemed guilty of sexual assault. This is at least the third procedurally dubious case at Brown in the past two years.

In November 2014, two students hooked up while watching a movie. Based on contemporaneous text messages, the accuser had been somewhat ambivalent about the idea of sexual contact, but there was no indication of her refusing consent at the time. (Indeed, it was undisputed that: the accused student made clear he expected they’d have sex if they met to watch a movie; during the intercourse she got up to turn off the lights, before returning to the student she’d accused; and several witnesses recalled that she described the encounter as consensual.) The accuser appears to have believed the hookup might be the start of a deeper relationship with the male student; he wasn’t interested. Eleven-and-a-half months after the evening with the movie, the accuser filed a complaint with Brown claiming she was sexually assaulted. She never went to the police.

In the 2015-2016 academic year, Brown revised its sexual assault procedures—introducing more stringent definitions of consent, including a standard of “affirmative consent” and a count of “manipulation” as grounds for finding an accused student guilty. The school also moved to specially “trained” panelists (who seemed remarkably guilt-presuming). A system that already was quite biased against the accused got even less fair.

Even so, there seemed to be no grounds for finding the accused student guilty. But the Brown panelists found a way. They applied the university’s standard of consent to an incident that occurred in 2014, on grounds that the code in existence at the time of the incident did not “explicitly define consent.” In other words: the accused student was found guilty of violating a definition of consent that did not come into existence until nearly ten months after the incident for which he was accused.

Brown tried to kick the student off campus before he even had a chance to appeal this finding; the TRO allowed him to remain in place throughout the spring semester. There’s no indication what will happen once September rolls around.


Meanwhile, the opening brief has been filed to the 6th Circuit in the appeal of the University of Cincinnati case. This case, as a reminder, featured a judge ruling that it was OK for a public university not to use the presumption of innocence, and to allow an accuser to testify, and then flee the room to avoid even the limited cross-examination the university allowed. You can read the brief here.

The appeal brief raised four primary issues:

“a. The University employed a system that, viewed as a whole, failed to provide the Plaintiffs a meaningful opportunity to be heard;

b. The University required John Doe I and John Doe II to prove that they have not committed misconduct;

c. The University failed to permit John Doe I the opportunity to effectively cross-examine his accuser and failed to permit John Doe II any opportunity to cross-examine his accuser;

d. The University’s investigatory and hearing process was biased.”

It also took aim at the district court’s extraordinarily limited conception of gender bias and Title IX, noting that since adopting its current procedures, the UC had returned a guilty finding in every sexual misconduct case. In each of these cases, the accuser was a female, the accused a male.

Both cases had involved procedural improprieties that even the UC conceded; but rather than dismiss the matters as flawed, the university simply remanded the cases back based on the same information that had produced biased outcomes in the first place, and saw the original judgments confirmed.

The brief faults the district court for its hyper-technical approach to examining UC’s standards, rather than viewing the procedures as a “whole” to see the university’s basic unfairness. It also faults the district court for its reliance on an earlier 6th Circuit case (Flaim), in which the accused student was convicted of a criminal offense (relating to drugs), and thus there was no factual dispute for the university disciplinary process to resolve. And it notes the district court’s odd concession that the complaint showed UC’s process to possibly be “biased in favor of alleged victims of sexual assault and against students accused of sexual assault”—but chose to dismiss the case anyway. The allegations of bias included suggestions that UC’s Title IX coordinator had a practice of not including exculpatory information in her supposedly unbiased investigative reports.

The university will file its reply brief in just under a month.

Amherst Update

In a somewhat testy two-hour hearing earlier today, Judge Mark Mastroianni seemed inclined to allow perhaps the most important of the college due process cases—that filed against Amherst College—to proceed, though he asked tough questions of both sides, and offered a troubling comment at the very end of the hearing.

As a reminder: Amherst is the case in which the accusing student, who I’ll call A.S., withheld text messages from Amherst’s hired investigator and from Amherst’s disciplinary panel. It’s not hard to figure out why she withheld these text messages—they feature her describing the sexual encounter not only as consensual but as one that she seemed to initiate, and they also have her expressing frustration that the accused student was too drunk to come up with a convincing lie to explain the situation to their friends. When the accused student finally tracked down these texts, Amherst said it was too late to consider them, even though they eviscerated A.S.’s credibility, and he was out of luck. This decision to close itself off from pursuit of the truth, the student’s attorney (Max Stern) noted, was the “worst” aspect of Amherst’s performance in the case.

No Amherst administrator or lawyer has ever denied that these texts were exculpatory (though the college’s hired investigator appeared to do so in her deposition), and the school has struggled to offer a consistent explanation as to why the texts either didn’t appear in the hearing or were irrelevant to the outcome. In the college’s initial filings, Amherst’s attorney, Scott Roberts, appeared to blame A.S.’s roommate for failing to tip off Investigator Allyson Kurker as to the existence of the texts. In her deposition, Kurker suggested that the texts were irrelevant, since she only desires written material from accusers after the point the accuser has made a rape claim. This is a convenient way of confining her search to inculpatory evidence.

In today’s hearing, Roberts offered another explanation why the texts should be beyond the purview of the courts: they were considered by the disciplinary hearing panel, which decided that whatever inconsistencies by A.S. they showed, these inconsistencies were balanced off against the inconsistencies of the accused student’s testimony.

This argument was remarkable in three respects:

  • First, Roberts never explained how the disciplinary committee could have fairly or thoroughly evaluated texts it had never read;
  • Second, he misleadingly suggested that A.S. didn’t reference both parties to whom she texted in her hearing—she told the three non-curious panelists that she had texted a student to come over and comfort her after the “assault,” when in fact she had texted this male student to come over before her interaction with the accused student, and her purpose wasn’t comfort but to have sex with him;
  • Third, Roberts’ claim that the accused student’s testimony about recalling events earlier in the evening but not any involvement with A.S. was fully consistent with the Amherst panel’s own finding that the accused student was experiencing an alcoholic blackout at the time of the intercourse but not earlier, so his testimony wasn’t inconsistent at all. Roberts suggested otherwise by implying that the accused student’s roommate was more credible on whether the accused student was blacked out than the finding of Amherst’s own disciplinary panel.

Judge Mastroianni didn’t appear convinced by Roberts’ contention, and the nature of the text messages came up in questions he asked of both sides. In a back and forth with Stern, Mastroianni wondered whether Amherst had an explicit requirement to track down the text messages (which were, after all, the most important evidence in the case). Stern conceded that no explicit requirement existed in the Amherst code, but the expectation fell under the code’s general promise of a “thorough, fair, and impartial” investigation.

To Roberts, on the other hand, these words were window-dressing. “Thorough,” “fair,” and “impartial” mean whatever Amherst desires, he reasoned. Because the college included the language in its disciplinary code, the provisions of the disciplinary code must be thorough, fair, and impartial. (This line of argument contained an Alice-in-Wonderland quality.) It’s legally OK, Roberts later added, for a college’s “thorough, fair, and impartial” to be “biased in favor of alleged victims.” This was a rather postmodernist approach to the language of college disciplinary codes. (Disturbingly, Roberts’ bio reveals that he has overseen seminars on how universities should conduct Title IX inquiries, and has “served as independent fact finder in multiple cases involving allegations of sexual misconduct in violation of Title IX.” One can only imagine what kind of a “fair” process those accused students received.)

Fairness was a main theme of the hearing, which in many ways was focused on two dueling decisions—Judge Saylor’s recent decision in the Brandeis case, and Judge Mastroianni’s own decision in UMass. The latter was hardly due-process friendly (Roberts, by my count, mentioned it nine times, contending it “set the bar” on the issue), but also didn’t involve a claim of actual innocence. Saylor’s paean to the importance of fairness—the most important decision in favor of an accused student to date—would clearly sink Amherst, and Roberts spent considerable time attacking it. He also produced a colored chart arguing that Brandeis’ procedures were much more unfair than Amherst’s, and therefore even if Mastroianni accepted Saylor’s reasoning, it shouldn’t apply to Amherst—whose approach to the case he portrayed as characterized by “basic fairness at all times.”

On the main subject of the hearing, Amherst’s motion for a judgment on the pleadings, Roberts spoke for around 55 minutes, and had an odd tendency to misrepresent the arguments made in the accused student’s complaint. As a result, some of his responses seemed ineffective. (Mastroianni didn’t interject for significant lengths of time, so it sometimes was hard to get a sense of his thoughts.) For instance, he repeatedly insinuated that the accused student being upset or disappointed with the disciplinary panel’s decision was the primary basis for the lawsuit, and seemed not to understand the accused student’s Title IX claim—especially its claim that Amherst treated him differently than A.S. because it investigated him for sexual assault but not her, even though the disciplinary panel found that he was blacked out and thus incapable of consenting to sex. (No one denies that A.S. consented to the opening part of the sex.) Amherst’s code distinguishes between sex while drunk, in which a student can consent, and sex while incapacitated (like the accused student in this case), in which a student can’t consent. But Roberts, who argued for a strictly literal reading of the disciplinary code for the rest of his argument, urged Mastroianni to avoid what would be a “no sense” interpretation: that by writing an incapacitated student couldn’t consent to sex, Amherst actually meant that it wrote.

Other than praising Mastroianni’s decision in the UMass case and condemning Judge Saylor’s decision in the Brandeis case, a Massachusetts state case (Schaer) and a First Circuit case (Fitzgerald) were the key elements in the Amherst argument. But Fitzgerald involved allegations of sexual harassment by parents of a kindergarten student. The idea that one of the nation’s finest liberal arts colleges thinks a case involving a five-year-old indicates the appropriate level of Title IX rights for its own students is quite remarkable. And Schaer, which Amherst wanted to use for the argument that its expectations of reasonableness, not a student’s, is more ambiguous than the college’s lawyer argued, as Mastroianni pointed out in a question. He deemed the issue “frankly, . . . an important point.”

A final point, on tea leaves. Near the start of the hearing, Mastroianni twice referenced that Amherst would have the opportunity to challenge the plaintiff’s assertions at a later stage. Of course, if he dismisses the case, there’d be no later stage, so the remarks could be interpreted as suggesting he’s inclined to allow the case to move forward. On the other hand, he ended the hearing by noting that he had looked at cases with “similar concepts” in the UMass case—where he decided in favor of the university. Saylor’s Brandeis opinion hadn’t been handed down at the time of the UMass, and the issue of fairness seems to be the central one right now.

Baylor & Institutional Conflicts of Interest

In addressing sexual assault, the nation’s campuses are facing a crisis of due process. Accused students are effectively presumed guilty and are routinely denied the means with which to defend themselves.

The popular image, however, is the reverse—that of campuses awash in violent crime, with police unwilling to unfair treatment of accusers. Some of this image comes from the misleading rhetoric of demagogic politicians, such as Kerstin Gillibrand, and anti-due process groups such as Know Your IX. It also is the direct result of OCR and White House statements and actions since 2011.

But there are two truthful elements that help sustain this broader, inaccurate, narrative. First: college women are sexually assaulted in disproportionate numbers, compared to the broader population. BJS data indicates that women aged 18-24 have the highest sexual assault rate (though even among this group, higher for non-students than for students). And some percentage—no data exists on how much—of these assaults are committed by a student at the victim’s institution, the only type of cases routinely considered under the jurisdiction of campus disciplinary processes. These figures don’t in any way justify the Obama policies (championing a parallel “justice” system for college students, without any police involvement), but they do show that sexual assault has to occur at virtually any campus.

Second: there are some cases in which universities do favor the accused. (Whether colleges, rather than police, should handle such crimes is, of course, another matter altogether.) Almost all of these cases have involved allegations against men’s basketball or football players, at institutions in the Power Five (ACC, SEC, Pac-12, Big 10, and Big 12) conferences—conferences where men’s basketball and football programs mean big money for the institutions, and where alienating the sports programs can cause problems for administrators. Cases at Oregon, Michigan, Florida State, and Tennessee involved credible claims of administration favoritism of accused athletes; cases at Missouri and Notre Dame were (at the very least) far murkier.

The most prominent member of this list is Baylor, which has announced the dismissal of its football coach and the demotion of its president, Ken Starr. Problems at Baylor first attracted national attention last year, in a case involving football player Sam Ukwuachu. A jury found him guilty of rape beyond a reasonable doubt, while Baylor’s process, using the OCR-mandated preponderance-of-evidence threshold, found him not guilty.

This outcome reflects the superiority of the legal system, rather than colleges, to adjudicate serious felonies. But it’s also hard to escape the sense that—contrary to most college cases—Baylor tilted its internal processes to favor Ukwuachu.

Since then, ESPN’s Outside the Lines has devoted considerable resources to the Baylor case. (The storyline is more appealing for the network than looking into Yale’s abuse of process toward basketball player Jack Montague, it seems.) The reporting convincingly argues that Ukwuachu wasn’t a one-off case, but rather part of a systemic pattern. Perhaps appearances are deceiving, but it certainly seems as if Baylor (a faith-based institution) recruited athletes with a penchant for violence, and did little or nothing to keep its students safe. This is the sort of conduct that resulted in successful Bush-era lawsuits against Colorado, Arizona State, and Georgia. Unlike the student-on-student allegations that dominate contemporary discourse, this sort of issue seems to me a perfectly appropriate Title IX case—since university action played such a key role in bringing the rapists to campus.

In making its personnel moves, Baylor released a summary suggesting retaliation against an accusing student. Other reports indicated that the Waco Police might have downplayed crimes committed by Baylor football players. No specifics exist on either front, but both would be appropriate matters for civil lawsuits or (regarding the police, if the claims are true) possible criminal prosecution.

In coming days and weeks, we doubtless will hear from the usual suspects about how events at Baylor justify OCR’s attacks on due process, or Kerstin Gillibrand’s fear-mongering, or Know Your IX’s crusade to create a guilt-presuming atmosphere on campus. So it’s worth recalling three critical differences between events at Baylor and customary campus rape cases:

(1) Some of these accusers went to the police. Their allegations were tested, under oath and in open court, and found valid. The accused received a full opportunity to defend themselves, and were found wanting.

(2) The university—to what extent remains, I suppose, somewhat open to debate—had a campus disciplinary process that favored accused students, a situation that (outside of the athletic context at large schools) almost never happens.

(3) In at least some of these cases, the rapists never would have been on campus but for university officials actively soliciting their presence at Baylor. Ukwuachu, for instance, had been kicked off his previous football team (Boise State) for disciplinary issues. It’s hard to imagine Baylor admitting a student who simply had applied to the school with such a record. For this reason, I disagree with Dan Wetzel’s argument that Baylor’s football program shouldn’t be punished. Based on the (incomplete) information publicly available, this scandal wouldn’t have occurred but for football. So weakening football seems like a good thing.

One final point: The Baylor case provides a reminder of what everyone already knew—that in adjudicating serious felonies in which both the accuser and the accused attend the school, colleges and universities have an inherent conflict of interest. In Baylor’s, that conflict tilted in favor of the accused. But on this front, Baylor is the exception that proves the rule.

GOP Officeholders Discover OCR Overreach

Last year, Stuart Taylor and I examined the peculiar response of congressional Republicans to campus due process. Despite being elected in 2010 on a mandate against executive overreach, most congressional Republicans have remained silent or even supportive (Rubio, Ayotte, Grassley) as the administration reinterpreted Title IX to eviscerate campus due process.

The fallout from North Carolina’s HB2 has only further exposed the inconsistency of the Republican—and conservative—response to the administration’s Title IX agenda. In response to a Charlotte ordinance, HB2 prohibited all North Carolina cities from enacting anti-discrimination laws based on sexual orientation, and required transgender North Carolinians to use bathrooms, in public buildings, corresponding to their biological sex.

The first sign of this inconsistency came in a perceptive piece by Michelle Goldberg, examining the efforts of the socially conservative group Alliance Defending Freedom to defend HB2. The organization produced a video featuring a woman who described herself as a sexual assault survivor, saying she’d be traumatized by having to share a bathroom with a biological male. (HB2, of course, requires transgender men—people who look like men—to use the women’s restroom, which also would presumably have a traumatizing effect on the ADF spokesperson.) ADF’s press release added, “Advocacy groups report that, in the United States, nearly 1 in 5 women and nearly 1 in 8 high school girls have been sexually assaulted.* For many of them, the mere presence of a biological man in a women’s restroom is a trigger that causes severe emotional and mental harm—regardless of that man’s intentions.”

George Will—who among conservative commentators has distinguished himself in resisting the Obama administration’s war on campus due process—accurately deemed the figure touted by ADF as “discredited social science.” (Even Obama, as far as I know, has never claimed that 12 percent of high school girls are sexually assaulted.) ADF, for its part, has looked to preempt such criticisms through the asterisk quoted above, noting These statistics are based on studies frequently cited in mainstream media. Alliance Defending Freedom cannot vouch for the validity of the studies.”

Does ADF normally utilize statistics whose validity it can’t corroborate?

Given that the organization has spent the last few years running around the Caribbean Basin seeking to uphold sodomy laws, it’s rather hard to take seriously ADF’s current crusade for privacy. But it’s not merely ADF that’s guilty of hypocrisy here. As Goldberg pointed out, for liberals, the best response to ADF’s attacks would be to stress the importance of civil liberties (in this case, for transgender people), “rather than engaging in a victimology arms race . . . Civil libertarians know that we don’t punish people as a group for the actions of individuals. They know that in a diverse, fractious, free country, sometimes other people are going to exercise their rights in a way that upsets or even scares you. And they know that protecting civil liberties sometimes means forgoing other kinds of protection. It would be easier for people on the left to make that argument now, though, if they hadn’t spent the past few years arguing the opposite.”

In this case, it seems, the abuse of statistics and appeals to emotionalism over due process used by groups such as Know Your IX against the due process rights of accused students has been employed by ADF—for an equally illiberal end.

Last week, the federal government and North Carolina sued each other in a battle over the constitutionality of HB2. (I don’t think the state’s odds are very good.) A few days later, OCR came out with “guidance” that public schools should allow transgender students to use the bathroom of the gender with which they identify.

This approach seems correct as a matter of policy and basic human decency. But as with much of the Obama administration’s OCR record, last week’s “guidance” seems procedurally suspect. OCR released its 2011 “Dear Colleague” letter on the day the President announced his re-election, without going through a notice and comment period. For reasons that Hans Bader and Scott Greenfield have pointed out, OCR’s “guidance” seems like yet another example of the office’s overreach.

(If it’s not already clear: I oppose HB2, as well as any public school policies that don’t treat transgender students equally, including allowing them to use the bathroom of the gender with which they identify.)

So: two “Dear Colleague” letters, one targeting the rights of accused students, the other safeguarding the rights of transgender students. A principled opponent of regulatory overreach would criticize both. But if only one policy were going to be targeted, it might seem obvious that it would be the first, since the 2011 Dear Colleague letter so clearly harmed people, while the harm from the 2016 version is (at best) speculative.

Prominent Republican politicians, however, have taken the opposite approach. There was Texas governor Greg Abbott:


And yet Abbott seems to have had no trouble with Obama acting as King, dictating disciplinary policies for Texas universities.

Governors Mike Pence and Asa Hutchinson had similar examples of selective federalism.

Perhaps the most remarkable response came from Nebraska senator Ben Sasse. He tweeted, “Has our Constitutional Law Professor-President ever read the 9th and 10th Amendments?” This is the same Ben Sasse who was president of Midland University when the 2011 “Dear Colleague” letter was issued; he remained in that capacity until his election to the Senate in 2014. There’s no indication from Midland’s sexual assault policy that Sasse had any 10th amendment concerns with a policy that targeted the civil liberties of his students.

The best-case scenario: GOP officeholders, energized by the current bathroom fight, will start looking skeptically at OCR’s earlier action. The likelier outcome, as Mark Bennett has noted: “More voters care about penises in the ladies’ room than about college boys being presumed guilty of rape.” I suspect the GOP silence regarding the administration’s assault on college students’ civil liberties will continue.

Brodhead’s Legacy

As he enters into his final year as the president of Duke Unversity, two highest-profile events of Richard Brodhead’s tenure—the lacrosse case in 2006-7, the campus protests in 2015-6—effectively illustrated his shortcomings as a leader. The most charitable interpretation of his tenure is that he was impossibly weak, a president over his head at a school like Duke and terrified by the race/class/gender student and faculty activists on his campus. The least charitable—but, I fear, more accurate—interpretation would see him as a failed leader, a model of how college and university presidents should not respond when faced with crises.

Two videos provide brief windows into Brodhead’s mindset. The first, from WRAL, came in his first public appearance—before the Durham Chamber of Commerce—after the arrests of Reade Seligmann and Collin Finnerty. By this point, his administration had declined offers from defense attorneys to examine evidence of the players’ innocence, and had remained silent amidst Mike Nifong’s pre-primary publicity crusade—a series of ethical violations that contributed to Nifong’s disbarment.

The “whatever they did” claim about Seligmann and Finnerty remains the most indefensible utterance of Brodhead’s presidency. Speaking to the city’s business and political elite, Brodhead’s remarks conveyed the impression that Duke harbored no doubts about the general media narrative of the time. (In fact, what Seligmann and Finnerty “did” was to attend a party they played no role in organizing and drank some beer.) Nearly seventeen months later, Brodhead issued an apology for intemperate remarks by the faculty. But he never apologized for, or even retracted, his statement to the Chamber of Commerce.

Indeed, in a recent interview with the Chronicle, he remarked, “I am certainly at ease with my conscience with the role that I played.” He dismissed the affair as a distraction, and denied looking back on it—an event, again, that cost his university tens of millions of dollars in settlements and legal fees—for lessons to improve his performance. The statement revealed a man incapable of critical self-reflection.

The second video, from last fall, features Brodhead sitting silent as his newly-appointed dean, Valerie Ashby, revealed a heretofore-secret policy, in which untenured faculty would be dismissed (told to “go”) if unspecified Duke administrators (or senior colleagues?) viewed them as “intolerant”:

Two Duke spokespersons didn’t respond to questions from me about the criteria for the new tenure policy, which violates core academic freedom principles. A third spokesperson gave an evasive response to Eugene Volokh.

Throughout the lacrosse case, fear remained a plausible interpretation of Brodhead’s actions—that is, that the president was so afraid of the Group of 88 that he abandoned the academy’s traditional fealty to due process. That line of argument became harder to sustain after the civil cases, when a contemporaneous Brodhead e-mail in which the president offered Primal Fear (a movie in which a guilty man fools his lawyers into believing his innocence) as a possible lens through which to interpret the accused students’ status.

Brodhead’s apparent belief in his students’ guilt perhaps explains his refusal (until after Nifong’s case already had collapsed) to defend their rights. Instead, he maintained that he had two and only two options—publicly proclaiming his belief in the students’ innocence, which would have been inappropriate; or the approach that he adopted, of issuing guilt-presuming statements that stopped just short of expressing his belief in the merits of Nifong’s case.

There was, of course, a third option, one consistent with longstanding academic principles: asserting that he couldn’t comment on the specifics of the case, but demanding that Durham authorities respect Duke students’ constitutional rights. He showed no interest in issuing such a statement. Instead, he infamously proclaimed that he looked forward to a trial, at which the accused students could prove their innocence.

Regardless of whether he ideologically shared the Group of 88’s guilt-presuming approach to the case or was simply bullied into doing so, the aftermath of the lacrosse case left Brodhead with little choice but to accommodate his race/class/gender faculty as much as possible. Group members were promoted to deanships, and there’s no indication that the administration looked at the faculty’s response to the lacrosse case as a reason to ask hard questions about Duke’s hiring priorities.

So when the protests of last fall and this spring came around, Brodhead had little choice but to appease as much as possible. Despite the absurdity of the protesters’ central claim—that a university whose leadership has spent the last two decades obsessed with increasing racial, ethnic, and gender (but not pedagogical or intellectual) diversity was actually a defender of institutional racism—Brodhead treated the protesters as serious figures. The university recently came out with a bias-response report, which doubtless will lead to hiring of more diversity-related administrators and faculty. And the president allowed the protesters to trespass in a Duke building without criminal or disciplinary sanction.

His thanks for the effort? Group of 88 extremist Wahneema Lubiano proclaiming that Duke was beset by “bigotry and exploitation.” That would be the same Wahneema Lubiano who’s now going on two decades of two purportedly “forthcoming” books.