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.

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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.

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