In a groundbreaking move, the first-ever prospective class-action lawsuit that would benefit students accused of sexual assault has been filed against a university, potentially reversing the outcomes of dozens of sexual violence cases.
Experts say the suit against Michigan State University is a clever legal maneuver that takes advantage of a significant ruling in the U.S. Court of Appeals for the Sixth Circuit. Judges determined in September 2018 that students accused of sexual assault, or their representatives, had a right to directly question their accuser, which legal experts said would reshape the notion of due process in these cases.
Andrew Miltenberg, the lawyer representing the accused student, amended the complaint this month and requested class-action status. The court would need to be persuaded that enough current or former students accused of sexual misconduct may have been denied due process to justify them as a class. Michigan State could also request that the case not be classified as a class action. A spokeswoman for the university declined to comment.
Miltenberg, a managing partner at Nesenoff & Miltenberg, said his client is not asking for monetary damages, but rather that sanctions imposed on these students be reversed.
Several Michigan State students have approached his firm about flaws they perceived in their Title IX cases and problems with the university’s processes, he said. After researching the number of potential accused students and after the Sixth Circuit decision in September, Miltenberg said he believed the class action was possible.
The lawsuit’s success hinges on whether the right to cross-examination was a key factor in every Title IX case at Michigan, said David A. Russcol, a lawyer specializing in Title IX at Zalkind Duncan & Bernstein in Boston. Russcol reiterated that the Sixth Circuit has been strong on issues related to due process.
“It certainly does make it plausible that with the dozens of cases at Michigan State over several years, it could raise these issues,” Russcol said.
The student, referred to as John Doe in a lawsuit filed over the accusation, was accused by a fellow Westmont student, referred to in court documents as Jane Roe. Jane gave varying accounts of the night in question to her friends and roommates, and Westmont chose to use only the testimony that corroborated her account and made John look like a rapist.
Associate Justice Martin Tangeman wrote the ruling, with which all three appellate judges agreed, that claimed Westmont failed to follow its own policies when adjudicating Jane’s claims.
Despite her roommates referring to her as a “compulsive liar,” Westmont found John responsible. Cleek didn’t even interview MH, MW, or others Doe requested. Westmont also “withheld its notes concerning panel questions and witness responses,” a trial court earlier ruled. This kept John from being able to question witness testimony.
Students who didn’t testify before the panel were given more credibility than those who did, which confused the appeals court. Tangeman accused Westmont of using a “seemingly arbitrary method” to determine who was credible in this case.
The College Fix reported that Westmont declined to comment on the ongoing case.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
Jane Roe accused John Doe of sexual assault while the two were students at Westmont College. John Doe says he never had sex with Jane Roe, and was never alone with her that night. Westmont’s Student Conduct Panel determined that the evidence supported Jane’s accusation. It suspended John for two years.
John challenged the Panel’s decision in a petition for writ of administrative mandate. The trial court determined that Westmont did not provide John a fair hearing, and granted his petition. This appeal stems from Westmont College appealing the lower court’s judgement.
In the Court of Appeal’s decision, they contended that much of the legal landscape has and is in the process of shifting, due to “Recent cases [which] describe the contours of what a fair hearing requires where, as here, the case turns on witness credibility.” Due to these cases, “At a minimum, the college must comply with its own policies and procedures,” which must, “provide the accuses student with a hearing before a neutral adjudicatory body.” Additionally, the, “accused must be permitted to respond to the evidence against them,” and that the, “alleged victim and other critical witnesses must appear before the adjudicatory body in some form—in person, by video conference, or by some other means—so the body can observe their demeanor.” The Court recognized the risk that, “an accusing witness may suffer trauma if personally confronted by an alleged assailant at a hearing,” and contended that, “It is not necessary to place the alleged victim and the accused in the same room.”
Former University of Southern California kicker Matthew Boermeester alleged in a federal lawsuit that school administrators “committed an egregious miscarriage of justice” in proceedings that led to his expulsion in 2017.
Boermeester was expelled after Southern Cal determined he had committed domestic abuse against his girlfriend, according to the lawsuit filed Thursday.
The school issued an interim suspension of Boermeester in January 2017, days after his lawyers claim Boermeester was the victim of “what can only be described as a game of telephone gone awry.” Boermeester’s athletic scholarship was pulled and he ultimately was expelled in May 2017, despite his girlfriend Zoe Katz's repeated claims that she had never been abused by Boermeester.
Boermeester and Katz are still a couple.
“I want to be very clear that I have never been abused, assaulted or otherwise mistreated by Matt,” Katz said in the statement. “He is an incredible person, and I am and have been 100% behind him. Nothing happened that warranted an investigation, much less the unfair, biased and drawn out process that we have been forced to endure quietly."
Two Occidental students had an extended Facebook chat for one day. The exchange was initiated by the female student and ended after she said she no longer wished to participate in the conversation. Later, she would tell school administrators that the male student stalked her, according to a lawsuit filed in California superior court. He was found responsible for stalking by Occidental and believed he would be barred from law school or medical school based on the finding.
Occidental, which has been sued previously for unfair sexual misconduct hearings, dismissed many of Malter’s main claims against Xu. The investigative report stated that her “messages did not clearly indicate that she wanted to stop communication with Respondent [XU] until her last message,” and "Based on the preponderance of the evidence, we find that Respondent did not continue to contact Complainant after she clearly told him to stop communicating with her, aside from one Facebook message in which he stated that he and Complainant should unfriend each other on Facebook.”
Mark Hathaway, attorney for Xu’s family, gave The Daily Wire a brief statement on the situation. “The family is devastated and had hoped to avoid litigation,” Hathaway said.
As attorneys who have assisted over 150 accused students and faculty, we support the proposed regulations. We have been honored to play a part in dozens of court rulings against the University of California, the California State University, and private colleges and universities, that have set aside campus decisions because of the lack of a fair hearing and lack of Due Process. As Justice Arthur Gilbert noted recently, "When the accused does not receive a fair hearing, neither does the accuser. Fairness and due process are not difficult concepts to articulate. Students should expect a clear statement of the alleged misconduct and the campus policies or codes that were violated; a fair and prompt investigation by an unbiased investigator; an opportunity to respond to the evidence; and, present a defense to the charges, and an impartial, neutral person or panel to make the decision. The proposed regulation , 106.6 confirms that familiar and long-recognized rights under U.S. Constitution, including the First Amendment and Due Process Clauses of the Fifth and Fourteenth Amendments, cannot be diminished when attending college or university.
The proposed regulations are consistent with California law, which requires live hearings with the opportunity for cross-examination and has eliminated use of the single investigator model, whereby a single individual investigates, prosecutes, and sentences the accused. (Doe v. Kegan Allee, et al (Jan. 4, 2019, B283406) __ Cal.App.5th __ .) From our perspective of working daily with students and families to protect access to higher education and the benefits it brings, the proposed regulations will have immediate and practical application.
Read More at Regulations.gov
A UC Davis student filed a petition Thursday in the Alameda County Superior Court to the UC Board of Regents after he was issued a two-year suspension from the UC system for allegedly violating the UC Davis Sexual Violence and Sexual Harassment, or SVSH, Policy and the UC Policy on Student Conduct and Discipline. The student, who is identified by the pseudonym “John Doe,” aims to “redress the improper administrative findings and decisions made by a single investigator,” according to the petition filed by Doe and his legal team.
The petition challenges the legality of the SVSH policy under which Doe was investigated. Doe and his legal team argue that the policy “violates the requirements of a fair process.” The petition also says the policies and procedures “fail to afford accused students due process and fail to comply with OCR (Office for Civil Rights) guidance and Title IX.” One of the listed allegations in the petition is that the SVSH policy does not provide “an adequate, reliable, and impartial investigation” because of its use of a single-investigator model in Title IX cases at UC Davis. In a single-investigator model, one individual is responsible for investigating and making findings about the case. The petition argues that this decision should not be left to a single person acting as an “investigator, prosecutor, and fact-finder.”
Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.
The decision last month came in a USC case but applies to all California public and private colleges, and prompted many to immediately halt Title IX investigations while they reshape their procedures. California State University, the University of California and USC, Claremont McKenna and Occidental colleges confirmed that they have made or soon will be making changes.
They already had been bracing to do so. In November, U.S. Education Secretary Betsy DeVos proposed controversial new federal rules that would strengthen the rights of the accused in sexual misconduct cases. The rules would apply to Title IX, which bans discrimination based on sex in educational programs and activities at schools that receive federal funding.
“It will protect millions of college students in California from losing their education in a process that’s arbitrary,” said Mark Hathaway, a Los Angeles attorney who has pioneered much of the litigation on behalf of accused students.
Almost four years after USC expelled tight end Bryce Dixon because a Title IX investigation found he engaged in nonconsensual sex with a student athletic trainer, the decision was overturned by an appellate court that found the school’s process to be “fundamentally flawed.”
The three-justice panel in California’s 2nd District Court of Appeal wrote in an opinion published last week that USC “failed to provide a fair hearing” to Dixon.
“In [Dixon’s] case, he was accused of sexual misconduct for which he faced serious disciplinary sanctions, and the credibility of witnesses was central to the adjudication of the allegations against him,” the 52-page opinion said.
“Bryce is paying a necessary, but heavy price for the things he did,” Mark Hathaway, Dixon’s attorney, said Monday. “But it’s apparent USC didn’t take care of Bryce in any way. If it had, it’s unlikely he would’ve been in the situation he’s been in.”
On Tuesday, February 5, 2019, the Superior Court of Los Angeles Judge Mary Strobel ordered the Trustees of the State of California to set aside the administrative decision and sanction of expulsion in a faulty Title IX adjudication at California State University, Fresno. The Court argued that CSU Fresno, “failed to provide notice of the allegation” and that there was no evidence that Title IX personnel at CSU Fresno, “informed Petitioner of the charges regarding Roe 1 prior to or during his interview.” The Court goes on to say that the Trustees cite an amended report after the remand which was not included in their original report or investigative notes, and that, “the amended report, prepared after remand, does not cure the failure to give notice of the allegations with respect to Roe 1.”
A male student at California State University-Fresno was expelled after his school investigated the claims of two women who said he sexually assaulted them. Based on available evidence, a judge has called for the school to overturn its decision.
Superior Court Judge Mary H. Strobel found several deficiencies in CSUF’s investigation of John. The student had originally been told he was accused of sexually assaulting Jane 1 because she was too drunk to consent. That claim apparently failed, so he was punished for sexually assaulting her because she was 17 at the time of the sexual intercourse. Boele even amended the investigation complaint, without new evidence, to claim that John told her he knew Jane 1 was 17 at the time of their encounter. John says he said no such thing. Judge Strobel declared Boele’s addition of this claim, which did not exist in the original report or in any of her investigative notes, “deserves little credence.”
Because John was not told what he was actually being investigated for, he had no way to defend himself. That, plus his inability to cross-examine his accusers, the witnesses, or the evidence against him led Strobel to conclude he had not been given a fair investigation.
The era of serious punishments based on a single official’s investigation is over at the University of Southern California.
For the second time in less than a month, a California appeals court ruled that the private university denied a student accused of rape a fair hearing, and that the same Title IX official conducted a shoddy investigation.
The three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form.
“The decision against USC appears to be consistent with the new Title IX guidelines” proposed by the Department of Education last fall, which are open to public comment through January, Doe’s lawyer Mark Hathaway wrote in an email.
A California appellate court has set aside the expulsion of a former football player at the University of Southern California finding that a Title IX investigator had ”overlapping and conflicting” roles when looking into allegations that the player had raped a student trainer.
In an opinion published Friday (January 4, 2019), the Second District Court of Appeal found that, given the potential consequences of USC’s disciplinary proceedings, the football player, referred to in the proceedings simply as John Doe, had the right to cross-examine his accuser, Jane Roe, either directly or indirectly. USC’s procedures, the court held, left the school’s Title IX investigator to act as “investigator, prosecutor, factfinder and sentencer” in such cases and therefore deprived Doe of his right to cross-examine his accuser.
Read More at law.com
The University of Southern California will have to overturn the expulsion of a student accused of rape because the school investigators did not question central witnesses and couldn’t locate “physical evidence” to determine the validity of the allegations, a California appeals court ruled on Tuesday. The court said the accused student was denied a fair Title IX proceeding, because in addition to investigators apparently not being interested in interviewing the witnesses, their testimonies about the alleged nonconsensual anal rape were riddled with “inconsistencies” and raised questions whether the perceived blood they saw in the accuser’s apartment was actually paint.
Read the full article at Fox News
A California appeals court ordered a trial judge to set aside the expulsion of “John Doe” because the accused student was denied a fair Title IX proceeding by the private university.
In its ruling Tuesday, the appeals court said USC’s Title IX investigator should have interviewed “three central witnesses” whose testimony was marked by “inconsistencies” and disputes over whether they saw blood or paint in the accuser’s apartment.
USC violated its own rules by failing to request clothing and medical records from “Jane Roe,” said the opinion, written by Associate Justice Gail Ruderman Feuer and joined by Presiding Justice Dennis Perluss and Associate Justice John Segal.
In a rare federal win for male students, Tulane University has made an agreement with the federal government to stop discriminating against men by offering female-only scholarships and financial aid.
The policies were found to be in violation of Title IX, the anti-sex discrimination statute from 1972.
In a statement to PJ Media, Tulane spokesman Michael Strecker said the resolution was not an admission of guilt on the part of the university and that it may still provide “sex-restrictive scholarships.”
"This resolution agreement contains no admission of liability, non-compliance or wrongdoing by Tulane," Strecker said. "This resolution agreement does not impact sex-restrictive institutional scholarships. Title IX allows for sex-restrictive scholarships as long as the total pool of scholarship money is fairly distributed between men and women.”
Valois is the mother of two sons, and her efforts to end institutional discrimination against men at Tulane via scholarships is similar to an effort launched by Kursat Christoff Pekgoz, a doctoral student at the University of Southern California.
Pekgoz is also targeting specific schools, including Yale University, for providing female-only scholarships and professional assistance even though women outnumber men on college campuses and among graduates.
The Santa Barbara Superior Court found the University of California Regents in contempt of court on Friday, stating that a student accused of stalking and sexual violence had been denied due process on two separate occasions and thus would be allowed to return to UC Santa Barbara.
Judge Donna D. Geck ruled the UC Regents failed to provide a fair hearing for the accused student, known in court documents as John Doe, in a Title IX investigation. UCSB expelled Doe in November 2016 after a student filed a Title IX complaint against him that June.
Read more at Daily Nexus
A California judge ordered USC to pay $111,965 in attorney fees late last month to a student accused of rape in 2016, after deeming its Title IX investigation unfair.
The request came from the student’s lawyer, Mark Hathaway. Though the University pointed out the request was filed past the deadline, the court allowed an extension, citing “reasonable mistake of law.”
The June 28 ruling followed one from December in which Hathaway accused USC of not providing defendant John Doe with a fair trial due to underlying bias by the University’s Title IX office as well as failure by the University to adhere to its own procedures, which require a “fair, thorough, reliable, neutral and impartial investigation.” Hathaway also accused USC of not allowing Doe to access all relevant information.
Read more at the Daily Journal
Mark Hathaway, a Los Angeles-area attorney who has represented accused college students in about 60 cases, said he was gratified by DeVos' move to review federal guidelines. He said he particularly hoped that accused students would have access to evidence and the ability to challenge statements by the accusers and witnesses before a finding was made.
Hathaway also said that allowing one person to act as both investigator and judge, a model used by UC and many other universities, was unfair to the accused.
He added that there was a "wide variance" in policies across California campuses. He praised UCLA, for instance, for fair handling of cases — including providing support for the accused. But he said other campuses allow "secret witnesses" and deny meaningful access to evidence before a decision is made.
Read more at The Los Angeles Times
The University of Nebraska-Lincoln has opened a Title IX investigation into allegations that students verbally harassed protesters Saturday during the Women's March on Lincoln.
Hundreds of posts to social media following Saturday's march said members of the Phi Gamma Delta fraternity shouted sexually harassing statements at the protesters, including "No means yes" and a euphemism used by President Donald Trump in 2005 to describe grabbing a woman's genitals.
Read the full article at Journal Star
It would be difficult to imagine a better documented example of consensual sex than this case, where Jane Roe initiated the sexual activity, asked John Doe for a condom in a text message, texted another friend that she was going to have sex, told witnesses she was “fine” while the sex was occurring, admitted performing consensual oral sex on John Doe, sent text messages with smiley faces to friends immediately after the sex, but later said she could not specifically recall the sexual intercourse. Her roommate pushed Jane Roe to realize that she had been sexually assaulted and Jane Doe met with Occidental’s Sexual Assault Coalition, including co-founder Danielle Dirks. Professor Dirks told Jane Roe that John Doe “fits the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on the [sports] team, and was ‘from a good family.’” Both John Doe and Jane Roe were drunk and having sex, but only John Doe was punished and expelled.
John Doe’s initial court appeal was denied by Superior Court Judge Mary H. Strobel and the case is now pending the California Court of Appeal as Doe v. Occidental College, case no. B284707.
After a three-day preliminary hearing in July 2017 to determine if there was even a “strong suspicion of guilt” to proceed with a criminal case, Superior Court Judge Michael E. Pastor dismissed all charges against the USC student stating, “As I evaluate the totality of the evidence from the initial encounter between [Jane Roe] and the defendant, Mr. Premjee, I believe that there was consent and there remained consent throughout the unfortunate incidents in this case. There is no indication of any withdrawal of consent. There is a very strong indication that the alleged victim in this case was the initiator of any conduct between the defendant and the alleged victim.”
After Judge Pastor dismissed the criminal case, USC’s Title IX Office persisted in its investigation for another ten months and worked unsuccessfully to have the criminal case refiled. Jane Roe did not want a Title IX investigation and did not participate in USC’s evidence review or evidence hearing process. Although security footage showed that Jane Roe had approached Mr. Premjee and made aggressive sexual advances, including the hand gestures to her friend behind his back that she intended to have sex with him, USC’s Title IX Office eventually ordered Mr. Premjee expelled. The court appeal is now scheduled for hearing on December 19, 2018. See Armaan Premjee v. USC, LASC Case No. BS173043.
Parents of innocent accused sons are often crying inside for years as they try to help their young sons heal after they are treated cruelly and unjustly by Title IX. Title IX hearings are not about seeking truth when a sex accusation is made. Title IX is about cruelty towards the minority gender on campuses. Males.
New lawsuits appear weekly from accused males who have been bullied, abused and denied due process by Title IX.
Read the full article on SAVE OUR SONS
This is the one year anniversary of the Fox documentary that focused on three college males who were falsely accused. First, Occidental’s John Doe speaks about meeting Jane Doe, their night of sex and his TIX hearing when he was denied all rights. Second, Paul Nungesser’s lawyer speaks about his case. Paul was found innocent by Columbia and Law enforcement, but Paul was slandered viciously by celebrity seeking Mattress Girl. Third, University of Tennessee’s Corey Mock speaks about his TIX injustices. Eventually a court of law overturned UTC’s injustice. Here is the 41 min. documentary.
Credit: SAVE OUR SONS
President-elect Trump has offered few details on how his administration might deal with campus sexual assault, but his surrogates and other Republicans say they would scale back enforcement of Title IX.
With Donald Trump winning the presidential election on Tuesday -- and with Republicans maintaining control of both the Senate and House of Representatives -- victims and their advocates worry that the White House’s five-year push to combat campus sexual assault may end with President Obama’s tenure.
Read the full article at Inside Higher Ed
Lawsuits are accumulating across the nation brought by students who say they were unfairly disciplined for sexual misconduct by colleges and universities. And increasing numbers of judges are finding their complaints sufficiently valid to move forward.
But few, if any, of the alleged violations of a student’s rights compare in egregiousness to what happened at Wesley College in Delaware, as described in findings by the U.S. Department of Education’s Office of Civil Rights (OCR) made public Wednesday.
The Washington Post Fred Barbash
Below are words from a Male Student:
“Today I received an email from my school saying that I only had two weeks to complete a mandatory Title IX training, or else I would be dropped from all of my classes. Now this would not normally bother me, its just another one of those things that need to be done,
However, last year there was a girl, who would always go to parties, get drunk and end up hooking up with random party goers, So at one of those parties same thing as always happened, however the next day she claimed that she had been assaulted, She made a big deal out of it, however After an investigation was conducted it was found that she had no case, and that she had been at fault.
However That did not stop our professors, (we were taking the same classes) to extend all her deadlines, allow her to re-take her exams and even went as far as giving her honors. Meanwhile there were a couple of us who had actual medical issues, and yet our professors did not give us leniency. She has now graduated, and the gentleman who she accused has as well, she tried tarnishing his reputation, which did not help yet she was still able to milk the situation enough to get her to graduate with honors, and even free housing.”
Sherry Warner Seefeld’s son was found to be innocent after being accused of sexual assault. The woman who accused her son was charged with lying to police. It took more than a year before before his school, the University of North Dakota, agreed to let him back on campus…Now she’s on a mission to help other families in that same “horrific” spot, as the co-founder and president of Families Advocating for Campus Equality (FACE), a support group for the accused.
The Star Tribune Maura Lerner
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John Doe accused the university of creating a gender biased, hostile environment against males- based in part on UC’s pattern and practice of investigating and disciplining male students who accept physical contact initiated by female students, retaliating against male students, and providing female students preferential treatment under its Title IX policies.”
A key component of the situation is a 2011 letter from the OCR regarding Title IX compliance while dealing with sexual misconduct complaints. The letter, Doe asserted, spells out how schools are “to provide females preferential treatment” and “imposed numerous mandates to make it more difficult for males accused of sexual misconduct to defend themselves.”
cookcountyrecord.com By Scott Holland
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Athletes accused of sexual assault say they are being denied due process in Title IX investigations.
ESPN attempts to weigh in on the matter with two speakers. One speaker Jennifer, lies repeatedly as she claims that the 2011 Dear Colleague Letter protects the rights of the accused.
The second speaker Joe Cohn, speaks truthfully and honestly about the numerous due process rights denied to the accused during Title IX investigations and hearings.
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