The UCSD Case Under Appeal

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

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

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

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

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

What Constitutes a Fair Process?

The three big procedural issues were:

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

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

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

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

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

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


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

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

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

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

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

The Other Yale Civil Suit

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

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

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

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

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

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

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

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

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

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

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

The Montague Complaint

As expected, Jack Montague, the former captain of the Yale basketball team, has filed a lawsuit against Yale, citing Title IX and breach of contract concerns resulting from his expulsion for sexual assault. This case—much like the Amherst case, also handled by Montague’s lawyer, Max Stern—has the potential to be significant, though for a different reason than Amherst. Using Yale’s own data, the complaint very plausibly alleges that Yale’s Title IX bureaucrats manipulated a female student in order to bring Montague up on disciplinary charges—and that they did so to avoid the negative publicity the university was receiving for allegedly being too “soft” on sexual assault. If the complaint can survive a motion to dismiss, the internal communications from Yale’s Title IX office could make for very revealing reading.

I’ve written about this case previously; and have written on Yale extensively. (You can read the full complaint here.) The university has a long history of going after high-profile athletes through dubious procedural tactics, dating back to the Patrick Witt case.

The heart of the complaint is this: “Montague found himself thrust into the confusing, terrifying, and lonely process through which those accused of sexual misconduct are maneuvered, and into the midst of Yale’s ongoing battle to establish itself as an institution that takes accusations of sexual misconduct seriously. Unfortunately for Montague, he was a prime candidate to serve as Yale’s poster boy for tough enforcement of its Sexual Misconduct Policies: popular, well-liked and respected amongst his peers at Yale, and known throughout the country as one of Yale’s most promising men’s basketball stars. In short, imposing harsh discipline on Montague would surely make an impact.”

The basics of the case: in fall 2014, Montague had a short-term sexual relationship with a female student. In September and October, the two spent the night together three times, and had some sort of sexual contact, including intercourse on at least one occasion. On the fourth time, in October, they had sexual contact but not intercourse in a car. They then went to Montague’s room, undressed, and had sexual intercourse.

The accuser would at some point conclude the intercourse was non-consensual (when remains a matter of dispute)—that she had wanted to hook up with Montague but not have sex with him. But even by her own admission, her method of communicating this intent, as she was laying alongside Montague in his bed, was virtually non-existent. During intercourse, she said that as she kissed Montague, touching his body consensually, she also “put her hands up, pressed them against the front of Mr. Montague’s shoulders and pushed him, but not very forcefully.” She also claimed that she told Montague she wanted to hook up but not have sex, but that he gave no indication that he heard her, as they were beginning intercourse. Montague claimed the sex was consensual.

In any event, after the disputed intercourse, the accuser returned to Montague’s room later that evening; they spent the night in his bed but she told him she didn’t want to have sex. He complied. A few days later, she said she hadn’t been comfortable having sex, and they stopped seeing each other. There was no indication that he harassed her (or had anything to do with her) over the next year.

Eleven months later, the accuser’s roommate was having a conversation with a Yale Title IX official (it’s not clear how many Title IX employees Yale has—according to the most recent report, Harvard has 50, so I’d imagine Yale’s total is comparable). The roommate told the official, Angela Gleason, that the accuser had a “bad experience” with Montague. Gleason met with the accuser around a month later, but the accuser made clear she didn’t want to file charges. So Gleason suggested Yale’s Kafkaeqsue “informal complaint” process—under which Witt was charged—in which the accused student is effectively presumed guilty and can’t present evidence of his innocence. The accuser agreed, provided that she could file her complaint anonymously, since she was “not interested in having Mr. Montague punished.”

At this point comes the heart of the case. Over the next few weeks, Gleason and/or her supervisors decided that they wanted to bring up Montague on formal charges, through the University-Wide Committee (UWC). According to the complaint, they misled the accuser into (a) believing that she couldn’t keep her identity confidential; and (b) that Montague had a past history of sexual misconduct towards women.

Montague did have a disciplinary past. But according to the complaint, the matter wasn’t sexual. The incident was from his freshman year, in public, when after a night of drinking he “rolled up a paper plate from the pizza parlor and put it down the front of [a graduating senior’s] tank top.” There was no sexual discussion or skin-to-skin contact, but Yale brought up Montague on charges of sexual harassment—oddly, since no one seems to have claimed that the incident was gender-related, or was anything more than petty drunken misconduct. He was placed on probation, and fulfilled the terms.

The accuser, however, appears to have believed that Montague had committed a sexual assault—based on what she was told by Yale officials. But she still declined to file charges against Montague. So the Title IX office came up with a plan to file charges independently. The accuser said she’d testify in a hearing, to “protect other women” from what appears to have been a non-existent threat.

To bring a case against Montague under these circumstances, Yale had to violate its own procedures. According to the Spangler Reports (the twice-yearly document about sexual misconduct cases Yale files as part of its OCR settlement), the Title IX officer can file only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” After charges were filed against Montague (but before the Title IX office’s involvement was public), Spangler told the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.” There clearly was no acute threat to community safety” from Montague.

Once Yale chose to file charges, Montague presumably had no chance: his exoneration would undermine what appears to have been the whole purpose of filing charges against him in the first place—to prove that the university was tough on sexual assault. We’ve heard a lot in recent weeks, especially because of events at Baylor, about how athletes receive special treatment on sexual assault. And sometimes, as at Baylor, they do. But this is a case in which Montague’s status as an athlete almost certainly worked against him, by making him an inviting target for the Title IX officials in a way that a normal student wouldn’t have been. His expulsion could send a broader message.

The complaint nonetheless brings to light deeply troubling aspects of Yale’s disciplinary approach. Montague had to give an interview with the Yale investigator without being informed of the specifics of the charges against him. The accuser appears to have been prompted to prepare an opening statement at the “hearing” Yale permits; Montague wasn’t told before the hearing he could do so. He couldn’t directly cross-examine his accuser; was represented by his coach (who couldn’t speak); and had no right to exculpatory evidence. The panel—specially “trained,” but with training material the university has never revealed—found him guilty. Yale then expelled him. The panel kept no audio or visual record of its “hearing.”

In its previous statements on the case, Yale has already telegraphed one element of its defense: the Spangler reports show that not everyone accused of sexual assault is expelled, so the university procedures aren’t biased against male students (so there’s no Title IX violation), or for that matter biased at all. The complaint, however, cleverly uses this same material—along with Yale’s own sexual assault scenarios—to show that, according to its own publicly stated guidelines, Yale should not have expelled Montague. Indeed, construing his behavior in the worst possible light, according to these guidelines he should have received a reprimand.

The conclusion of the case, of course, brought a witch-hunt atmosphere that recalled memories of the early days of the lacrosse case. When the basketball players did a silent tribute of personal support, they were roundly denounced. Anonymous students placed fliers on campus deeming Montague a “rapist.” (Now that they know the specifics of the allegations, would they still agree?) The Yale Women’s Center released a public statement deeming Montague’s expulsion “progress.” Unite Against Sexual Assault Yale termed it “exceptionally disappointing to see any display of support for anyone accused or convicted [sic] of sexual assault . . . It is the responsibility of every individual in the Yale community to take an active stand against sexually disrespectful behavior and sexual assault within their organizations and social circles.” In response, the basketball players released a hostage video-like statement, apologizing.

The general points:

(1) Yale had institutional reasons for wanting a target in fall 2015, and through the roommate’s chat with the Title IX official, Yale had its target. If this case survives a motion to dismiss, the e-mails from Yale administrators could make for explosive reading.

(2) The Title IX office’s filing charges against Montague violated the criteria laid out in the Spangler Reports and in Spangler’s public statement in February 2016. Yale hasn’t explained why it was so important to go after Montague that it needed to violate its own policies.

(3) The facts (at least as presented in the complaint, which appear to be largely undisputed) suggest that Montague was innocent. But even construing them in the worst possible light to him, Yale’s own public guidelines about appropriate punishments for particular types of sexual misconduct suggested he should have received a reprimand.

The case has been assigned to a Bush I appointee, Alfred Covello. Bush I judges have been all over the lot on this question (a Bush I appointee wrote one of the worst decisions on this issue, at Cincinnati), but it was critical for Montague to avoid the district’s chief judge, Janet Hall, who wrote a pioneering decision (involving, ironically, a case at Yale) that dramatically expanded the rights of accusers and provided some of the intellectual heft for the Obama administration’s efforts to eviscerate due process for accused students.

More on the Turner Case

Stuart and I have an op-ed in the Washington Post discussing the Brock Turner case at Stanford. We argue that the case proves that campus felonies like sexual assault are better handled by the criminal justice system than by campus tribunals—in no small measure because the public can have confidence in the Turner verdict in a way that would have been inconceivable with Stanford’s notoriously one-sided campus disciplinary process. The case thus gives the lie to campus rape groups like Know Your IX and their academic supporters, such as Stanford Law’s Michele Dauber, who have attempted to delegitimize the role of the police in handling campus felonies, at least when the felony is sexual assault.

A few other points from the case that deserve a mention:

(1) The 6-month sentence imposed on Turner (along with a lifetime requirement that he register as a sex offender) has triggered a severe backlash. Given the backlash, as Jason Willick first pointed out, it’s very difficult to comprehend the far more restrained response to the 6-month sentence imposed on former Baylor football player Sam Ukwuachu. By virtually any measurement, Ukwuachu’s case (which, like Turner’s, also received extensive media attention) was more severe: the nature of his assault appears to have involved more violence; alcohol does not seem to have played any role in his crime; he seemed to have had a pattern of treating women violently; and he had no remarks comparable to Turner’s expression of remorse. Yet there was no national campaign to recall the judge in the Ukwuachu case, nor was his photograph regularly used in social media with a “rapist” theme.

It would be interesting to hear from the accusers’ rights movement, and their media and academic allies, why they responded to the two sentences so differently. (I also agree, by the way, with the inappropriateness of the recall campaign against the judge, though I consider the sentence for Turner—like the sentence for Ukwuachu—too lenient.)

(2) Before the judge issued his sentence, Michele Dauber wrote a letter to the judge demanding that Turner spend more time in jail than what the probation office recommended. Dauber said that she wrote because of her expertise on the issue—without revealing that she had previously disparaged the ability of the same prosecutor’s office that successfully tried Turner to handle campus rape cases.

In her letter, Dauber conceded (correctly) that “the facts here are in some ways especially egregious when compared with many other assaults on campus.” She cited the public nature of the crime, and the fact that Turner and his victim were strangers. Just over a page later, however, Dauber suggested that “at Stanford, assaults that are very similar to this case are unfortunately all too frequent.” [emphasis added] Really? Cases similar to public assaults of strangers are “frequent” at Stanford?

(3) In her letter, Dauber asserted, remarkably, that students who have committed sexual assault at Stanford “typically have participated in athletics.” [emphasis added] She cited no evidence for this claim. Given that the data on which such a claim could be based is confidential, Dauber either: (a) simply misled a judge; or (b) inappropriately revealed protected information. I’d bet on (a).

(4) The Stanford Law professor justified her demand for a lengthier sentence (it’s worth pausing to consider the extraordinary nature of a high-profile left-wing law professor writing a judge to demand a longer sentence for a convicted criminal than what the probation office recommended) by citing deterrence. It’s not clear why potential Stanford rapists would be deterred by seeing a classmate get a three-year sentence (plus lifetime as a sex offender, loss of a degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist) but would not be deterred by seeing a classmate get a six-month sentence (plus lifetime as a sex offender, loss of a college degree, loss of ability to compete as an intercollegiate athlete, and massive media exposure as a rapist). Dauber did not explain how she reached her deterrence evaluation.

(5) Dauber concluded by claiming that “Turner will have plenty of opportunity to finish his education.” It’s not clear what academic universe she lives in, but it’s hard to believe (and for very good reason) that many universities will accept a convicted sex criminal who has a lifetime obligation to register as a sex offender. But—much like Jared Polis in his infamous 2015 remarks—it’s critical for figures like Dauber to keep alive the myth that colleges routinely admit students found guilty of sexual assault.

Dismissing Police Investigations on Campus

In the last few months, it seems as if there’s been a new due process lawsuit every other week. (While the Chronicle closely tracks accusers’ complaints to OCR, the higher-ed media has devoted scant attention to due process suits.) As more suits have been filed, it’s become easier to identify broader trends. Two recent complaints—from halfway across the country—show universities ignoring the results of police investigations, at least when the evidence doesn’t conform to the ideological biases of the campus Title IX office.

The cases occurred at Lynn University (in Florida) and the University of St. Thomas (in Minnesota). In both instances, hookups after drinking resulted in an allegation of sexual assault. In both instances, the accuser went to the police. In both instances, the police uncovered video evidence that contradicted the accuser’s version of events. At Lynn, campus security video called into question the accuser’s claim that she was incapacitated, and therefore couldn’t have consented. At St. Thomas, campus security video contradicted the accuser’s claim that she had no romantic connections with the student she’d accuse of rape; only when police informed her of the existence of video in the campus common area did she change her story and admit the two students had been kissing. (The accused student had made this claim all along.) In both instances, in part because of the video evidence impeaching the accuser’s credibility, the allegations were deemed unfounded.

And then, in both instances, the university found the accused student guilty—in part by excluding or downplaying evidence trained law enforcement had deemed vital, and in part through almost comically one-sided procedures.

Lynn reached its result through a type of procedural chicanery. (As with a disturbing number of accusations, the Lynn case appears to have involved a white accuser making an allegation against a student of color.) During the hearing, the accused student had only a “silent” advocate (his mother), while the school allowed the accuser to be represented by counsel, who allegedly participated in the hearing. As at many schools, Lynn prohibits cross-examination of the accuser, requiring the accused student to submit questions in writing. The accused student did so—and then the panel chair refused to ask the questions, on grounds that she “already knew the answers.” Lynn found the accused student guilty, on grounds that the accuser’s having consumed alcohol rendered her unable to “fully comprehend” that she had consented. Left unexplained: (1) how the university reached a different conclusion on this point than the police, using the video evidence; and (2) why Lynn didn’t use its own standard (incapacitation, not drunkenness) for cases in which an accuser couldn’t consent.

In the University of St. Thomas case, the university briefly persuaded the judge overseeing the case to seal the complaint. A redacted version of the complaint is now available. Last December, two UST students met at a party. Both had been drinking. They flirted and returned to the accuser’s dorm. They made out on the couch in a common area. They then had some form of sexual contact in the accuser’s bathroom.

The accuser subsequently informed police that she had been sexually assaulted. In the common room, she told police, she made clear that she had no interest in intercourse with the accused student; he then asked to use her bathroom, and attacked her without warning when she went in to check on him. The police reached out to the accused student; his lawyer said the sexual contact was consensual, and that the two had made out in the common area before entering the bathroom. The police set up another meeting with the accuser, asked her about the previous interaction—and informed her that campus security video of the common area existed. She then dramatically changed her story, and admitted that she hadn’t been candid with the officers. The police interviewed a variety of other witnesses, and ultimately concluded that the “facts” and “circumstances” of the case “don’t support charges.”

The accuser, however, simultaneously pursued charges through UST. At a meeting with the accused student, his father, and his lawyer, UST’s associate general counsel dismissed the results of the police inquiry, remarking that the state “always” declined prosecution of he-said/she-said cases. The counsel then denied the accused student access to the common room video that was critical to the outcome of the police inquiry.

Under UST’s procedures, there isn’t a hearing, and therefore no cross-examination occurs. Instead, “factfinders” interview both parties, and other witnesses if necessary. No evidence exists that the accuser was asked about her shifting stories to the police. UST’s investigators found the accused student guilty, and he was suspended until the start of the fall 2017 semester. The accused student himself couldn’t see their report; his lawyer could, provided that he agreed not to make copies of it. He discovered that much of the report was redacted, weakening any chance of a meaningful appeal. UST denied the appeal—but extended the student’s suspension, without explanation, until the start of the spring 2018 semester.

Both of these cases (especially the St. Thomas one) are ambiguous; it’s possible that an assault occurred in either or even both instances. But the police appeared to have strong grounds in both cases not to bring charges. And rather than deal with the findings of trained law enforcement, both universities instead adopted procedures that limited the rights of the accused student, and removed or minimized evidence that had been critical to undermining the accuser’s credibility.

Commenting on the reaction to Baylor events, Robby Soave presciently worried “that Title IX is pushing schools in the wrong direction–away from police involvement.” The Lynn and UST cases go a step further—with OCR pressure (and administrators’ own ideological preconceptions) causing schools to undermine the results of the police investigations that occur.