Campus Due Process, Back at the 6th Circuit

In recent years, campus due process claims have fared poorly before courts in the 6th Circuit. Judge Susan Dlott dismissed a complaint against Miami despite what she deemed the “troubling” allegation that the university’s chief investigator discouraged an exculpatory witness from testifying. Judge Christopher Boyko dismissed a complaint against Case Western Reserve University despite finding a “plausible claim that Plaintiff was innocent of the charges levied against him.” And the University of Cincinnati has seemed desperate to claim the nation’s most unfair campus sexual assault process, currently boasting that students accused of sexual assault will not receive “a space whether [sic: where?] the standard of proof is ‘innocent until proven guilty.’”

Today, Cincinnati was back before the Sixth Circuit Court of Appeals, defending a process even more unfair than the two previous cases that went before the appeals court last year. (In one of those, the university had refused to look at potentially exculpatory video evidence; in the other, it allowed an accuser to testify and then flee the room before cross-examination, contending that cross-examination from a previous hearing, whose result had been invalidated for other procedural improprieties, was enough.) In today’s case, two students met on the Tinder app. The female student subsequently claimed the sex wasn’t consensual; the male student said it was. At the hearing, neither the accuser nor the Title IX investigator, who prepared a report that was provided to the hearing panel but who had ceased working for UC by the time of the hearing, bothered to appear, thus denying even the indirect cross-examination (submitting questions that the panel might or might not ask) university procedures permit. The accused student gave a statement to the panel affirming his innocence, after which panel members asked him questions. Because the accuser didn’t appear, the panel had no opportunity to ask her any questions.

The absence of the complaining witness and the UC-designated investigator produced this near-farcical exchange at the hearing:

Panel Chair: OK, so the complainant is not here. At this time I would have given them [sic] time to ask questions of the Title IX report. But again, they [sic] are not here. So we’ll move on.

So now, do you, as the respondent, … have any questions of the Title IX report?

Accused Student: Well, since she’s not here, I can’t really ask anything of the report.

Is this the time when I would enter in like a situation where like she said this and this never could have happened? Because that’s just—

Panel Chair: You’ll have time here in just a little bit to direct those questions. Just—

Accused Student: Then no, I don’t have any questions for the report.

(The panel chair didn’t explain how the “report” could have answered any questions the accused student presented.)

The panel found the accused student guilty—although, oddly, it only suspended him, a sentence that suggested even UC wasn’t confident in the finding.

The student sued. Judge Michael Barrett ruled that “in this case, the [UC] Hearing Committee was given the choice of believing either [the accuser] or Plaintiff, and therefore, cross-examination was essential to due process.”

In its appeal to the 6th Circuit, which you can read here (along with the accused student’s reply), UC maintained that its denial of any cross-examination didn’t violate the student’s due process rights. The university relied on three 6th Circuit decisions involving high school students, and explained away as “dictum” a passage in the otherwise due process-unfriendly Flaim decision (which applied to college and university students) stating that (quoting Winnick v. Manning) if a “case had resolved itself into a problem of credibility, cross-examination of witnesses might have been essential to a fair hearing.”

The university further maintained—again citing to the high school decisions—that allowing cross-examination would impose an inappropriate burden on UC. “If cross-examination were permitted,” the university’s lawyers mused, “where would the limitations lie?” Yet UC’s current procedures allow (indirect) cross-examination in all campus sexual assault cases, provided the accuser bothers to appear. UC has seemed to have no problem with “limitations” in constructing its own procedures allowing (indirect) cross-examination.

The case went before an interesting panel—Amul Thapar, Donald Trump’s first Appeals Court nominee, in his first day hearing arguments before the 6th Circuit; Richard Griffin, a Bush II nominee; and Eric Clay, a Clinton nominee.

As occurred last week in the BC case, the hearing went poorly for the university. Both Griffin and (especially) Thapar asked tough questions of the university’s attorney, Evan Priestle; Clay spoke the least in the hearing, though his comments were very interesting.

Judge Griffin began by homing in on a point that Judge Barrett hadn’t emphasized—that the accuser’s non-attendance seemed to violate UC’s own rules.

 

Judge Thapar later added that UC’s inability to follow its own rules seemed to maximize the importance of cross-examination.

 

Both Griffin and Thapar (Griffin’s in this clip) repeatedly pressed UC on its extreme argument—that no cross-examination of any type is necessary—noting that that due process depended on the facts of the case:

 

Here, Griffin noted the particular importance of cross-examination for campus sexual assault cases:

 

Several times, Thapar expressed skepticism about UC’s efforts to rely on cases involving K-12 discipline to justify its policies:

 

In the rebuttal portion of the hearing (which extended several minutes past the deadline), UC’s attorney made increasingly aggressive arguments, surprising Thapar with this claim that the value of cross-examination, at least in university hearings about sexual assault, is “minimal.”

 

The attempt to make this argument with Griffin fared no better.

 

And Griffin closed the proceedings by noting that a process in which the panel simply trusted a report when the accuser didn’t bother to show up seemed inherently suspect.

 

In some ways, the most interesting portions of the hearing came with the three interjections from Judge Clay, a liberal but someone with a particular background with student discipline. In 1969, as an activist in the Yale Law School Black Students Union, Clay faced charges for allegedly threatening a visiting professor, George Lefcoe. Before the disciplinary tribunal, Clay argued that, placed in the appropriate cultural context, the statement didn’t constitute a threat. As Laura Kalman details in her book on YLS in the 1960s, Clay’s advocate (a 3L at the school) “cross-examined Lefcoe at length about his prior experiences with African Americans in an apparent attempt to demonstrate that Lefcoe had little and had not comprehended Clay’s words.” (Lefcoe later supported Clay’s judicial nomination.)

Perhaps because he was someone who personally recognized the value of cross-examination in the student disciplinary process, Clay offered the first interjection of the hearing—noting that what Cincinnati even purported to offer was not, in fact, cross-examination at all.

 

In this perceptive question of the accused student’s attorney, Joshua Engel, Clay wondered whether universities were prioritizing Title IX over the pursuit of truth.

 

Finally, after Thapar all but invited a challenge to how UC’s system of indirect examination might be unfair, Clay commented on how the hearing, at the least, would have been more fair if the accuser had shown up. Both questions teed up Engel to make an important point about why due process matters.

As occurred in the BC hearing last week, Engel faced no skeptical questions; indeed, the judges seemed to want to explore broader issues than relevant for this specific case. As with BC, oral argument isn’t necessarily predictive, but a decision in favor of UC from this panel would be a big surprise.

On the USA Today Op-Ed

I appreciate the warm words about the USA Today piece from Stuart and me; I thought I’d also respond to two critical comments I encountered on Twitter.

First was this tweet from Robb Jones, senior vice president and general counsel for claims management of United Educators, an insurance company that represents more than 1000 colleges and universities.

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To give a sense of the spirit through which UE approaches these lawsuits, one of its spinoff groups recently published a white paper entitled, “Sexual Assault Claims: Perpetrator as Plaintiff.” The concession that these were “alleged” perpetrators only appeared in the summary.

That said, Jones’ tweet is correct; a slight majority of the decisions have come on motions to dismiss. And in a few of those cases, the district court accepting all well-pled facts as true directly affected the outcome. For instance, the recent Williams decision came out of a complaint that relied (in part) on testimony from a Williams whistleblower whose allegations were untested. The standard also probably affected the outcome in Washington and Lee case (though the university subsequently settled) and might have affected the outcome in the Ohio State case.

If most of the decisions in favor of accused students resembled the Williams decision, it would minimize the significance of the total number of cases in which colleges have been on the losing side. But in the vast majority of the campus due process lawsuits, the core facts either weren’t in dispute or weren’t directly relevant to how the judge approached the motion to dismiss. For obvious reasons, colleges could not challenge the factual basis of the hearing transcript,  stated college policies, or investigative reports. There have been some cases, as well, where the accused student has tracked down additional evidence. (Amherst, for instance, never challenged that the accusing student sent the critical text messages that its investigator failed to discover.) And so, decisions like Amherst, or Brandeis, or DePauw, or CSU-Pueblo could have tone and content leaving little doubt where the judge might be going with the case.

To the extent that Jones sought to imply that the constellation of facts at the motion to dismiss stage favors the student, he almost certainly is wrong. Except in procedurally fluky cases like Amherst, these proceedings usually take place before the accused student can get access to the type of internal college documents or e-mails or officials’ testimony that proved so devastating to Brown or James Madison or (it seems, based on the oral argument in the First Circuit) BC.

This, doubtless, is one reason why so many schools have settled (presuably with the support of their insurance carrier) once they lose a motion to dismiss. And it’s a major reason why motions to dismiss are likely to be the final rulings in most campus due process federal lawsuits in the near future, as well.

Finally, it should go without saying that the relevant precedent in nearly every circuit is deferential, often extremely so, to the college. (The Second Circuit after Columbia is the exception here.) Consider the background to some of the cases that schools have won: Miami, despite Judge Susan Dlott confronting the “troubling” allegation that the university’s chief investigator discouraged an exculpatory witness from testifying; Case Western, despite Judge Christopher Boyko finding a “plausible claim that Plaintiff was innocent of the charges levied against him and that CWRU wrongly found that Plaintiff committed the offense”; Vassar, despite a procedure overseen by a colleague of the accuser’s father, and a hearing (more than one year after the incident) that did not hear from the last two people to see the accused and accuser on the night in question, in a case that solely depended on whether the accuser was intoxication. That, in cases dealing with campus rape tribunals, schools nonetheless have lost more than they’ve won since the Dear Colleague letter is remarkable.

Title IX Project founder Jody Shipper, meanwhile, added the following:

 

Accusers’ rights groups have increasingly defended the Obama administration’s legacy by deeming it a “civil rights” issue. Title IX is, unquestionably, a civil rights law. But unilateral interpretations of that statute by Russlynn Ali or Catherine Lhamon hardly deserve the deference of Loving.

Similarly, that Title IX is an “equity” law doesn’t mean the Dear Colleague letter’s demands were based on equity. If, in fact, campus procedures mirrored civil ones, few could object to the preponderance standard or the accuser’s right to appeal. But accused students lack many of the key protections available in civil cases: the right to discover evidence, including through a deposition; the right to have their lawyers cross-examine witnesses, including the accuser; and the right to have their cases decided in an open forum by an impartial judge and jury. In this respect, the Dear Colleague letter and its successors (rather inequitably) imposed two elements from civil procedure that would yield more guilty findings (preponderance, right of accuser to appeal a not-guilty finding), while discouraging (cross-examination by the parties, existence of hearings) or ignoring (meaningful legal representation, tribunals without a conflict of interest, problems with a lack of discovery in campus tribunals) features that would reduce the chances of wrongful findings of guilt.

With regard to the right of an accuser to appeal, campus Title IX procedures more closely resemble the criminal justice system. Unlike the civil system, most campus Title IX tribunals feature someone paid by the college, either presenting evidence (the campus investigator) to advance the claim of guilt or serving as a de facto prosecutor (as in the cases at UCSD, Cincinnati, and Duke). In short, the accused student faces not only the accuser, but also a college employee of some type. The accused student then is judged by a panel, consisting of people paid by the university, that—per OCR guidance—must be trained. No school has released its tribunal training material, but the few whose contents have leaked (Stanford, Middlebury, Ohio State) have been strongly one-sided.

Forcing a student who overcomes all these obstacles to then prove his innocence a second time is deeply unfair. That’s all the more so given that the appeals generally go before higher-ranking administrators—figures more sensitive to the potential financial (a possible OCR complaint), public relations, or institutional (protests from faculty or campus activists) drawbacks of returning too many not-guilty findings. No one should be surprised, then, to see the type of procedural abuses that have appeared in cases at James Madison, George Mason, and the University of Michigan, when the appeals process overturned an original not-guilty finding.

(Accused students subsequently prevailed in lawsuits against the first two schools; a motion to reconsider, based on new evidence obtained from a deposition by the accuser in an unrelated civil case, is pending after the court initially dismissed the complaint against Michigan.)

Amidst the debate of recent weeks, defenders of the Obama-era OCR policies have unconvincingly maintained that the Dear Colleague letter didn’t change much, because most schools already used the preponderance standard. (In her 2016 letter to James Lankford defending the work of the Obama-era OCR, Lhamon cited only to a FIRE study examined the standards of proof used in around 2 percent of the nation’s schools.) But even the Obama defenders haven’t claimed that before the Dear Colleague letter, a majority of schools allowed accusers to appeal not-guilty findings. No data on this issue exists, but in general, campus disciplinary systems (on all issues) seem to avoid double jeopardy, at least until the Dear Colleague letter.

My apologies if either of these points was unclear in the op-ed.

A final tweet, from campus security consultant (and Sabrina Rubin Erdely source, in support of the thesis of her retracted article) S. Daniel Carter, perhaps best illustrates the mindset of defenders of the Obama-era policies.

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As the quote Stuart and I used in the op-ed from Judge Saylor points out, assuming that the two sides in the hearing are a “survivor[]” and an “accused” student presumes guilt (unless the accused student can somehow prove that another student committed the offense that made the accuser a “survivor[]” of sexual assault). The point of the disciplinary hearing, as Saylor notes, is to determine whether the accuser is, in fact, a “survivor[],” and the primary interest of the college is in establishing the truth.

I suppose, however, that if you start with the presumption that students who file sexual assault complaints should simply be deemed “survivors,” the procedures currently used in colleges make some sense.

The First Circuit and Boston College

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

And here Selya rebuked Lapp for an evasive response:

 

To sum things up, the panel seemed most concerned with the issue of breach of contract, regarding Dean Hughes’ refusal to discuss JD’s factual claims in their initial meeting; and emails between Dean Hughes and the panel chair that appeared to lead the chair to take off the table the possibility of a no-finding outcome. The most interesting question in the hearing was the panel’s last of BC, regarding the seeming inconsistency of finding the accused student guilty of an offense the accuser had not, in fact, alleged.

Selya and Kayatta were very active questioners; Torruella was mostly quiet, except for his questions about excluding exculpatory evidence. The panel asked virtually no questions of JD’s attorney, and those they did (whether breach of contract was a more suitable frame for the case than fundamental fairness, whether the evidence suggested the case should go to trial rather than a summary judgment for JD) were of a very different type than those that went to BC.

 

The 5th Circuit Opinion

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

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

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

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

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

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

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

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

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

Nifong Ethics Trial

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

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

Day One

Bar prosecutor Katherine Jean summarized the allegations:

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

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

 

Day Two

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

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

 

Day Three

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

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

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

Day Four

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

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

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

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

Day Five

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

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

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

 

Cohan, Embittered

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

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

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

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

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

Reade_Seligmann_ATM_photo_2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Specifics & Narrative

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

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

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

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

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

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

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

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

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

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

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