http://www.browndailyherald.com/2016/09/29/judge-invalidates-brown-ruling-sexual-assault-lawsuit/
The result is not terribly surprising. Retroactive application is pretty rare.
I’m more surprised that Brown students emailed a sitting judge on a current case, that Brown didn’t immediately put a stop to it, and that the Judge didn’t have the U.S. Marshals pay the students a visit to talk about obstruction of justice. A comment in the decision is a very lenient way of dealing with this and I hope those students know how lucky they are.
Yes, not surprising. There have been enough cases now to support the breach of contract in cases where the universities have failed to even follow their own guidance. The Chicago case also has a student protest component, but I do like what the judge said and I wonder if this sort of misbehavior occurs in colleges other than the highly selective which seem to be the ones that make the “media.”
The most important part of the article, IMHO, is the list of the individuals deciding sexual assault cases at Brown and what their day jobs are.
In this case, the hearing panel was the dean of curriculum, the director of a public service center at Brown (this one, alone, has a JD), and an undergrad.
The appellate panel was an athletic development officer, the deputy director of athletics, and a graduate student in computer science.
My former Brown student, who is also suing as a John Doe plaintiff in the same court, was found responsible by the head of housing/dining, a math professor, and an undergrad.
“responsible by the head of housing/dining, a math professor, and an undergrad”
Good God, 
@Hanna: It’s an amazing world when I think to myself, “at least the investigator wasn’t also the hearing officer…”
I don’t have a problem with Judge Smith’s decision. It was a fundamental flaw to apply a new policy that was not in effect at the time the incident took place. And especially so because the new policy had a material addition to the definition of consent.
But I am not getting the criticism of the appellate panel. Karpinnen who was the athletic development officer has a BA in political science/history – she then went on to get a master’s degree. Sullivan who was the deputy director of athletics is a graduate of Deerfield, and he has a BA in history as well as an MBA. Then there was the third panel member who is a graduate student at Brown.
The judge’s decision notes the training these individuals undertook. It was substantial. All members of the Council from which the panel is selected completed an overview of Title IX, Brown’s policies and procedures and of the evidentiary standard. They also had sessions with a male speaker addressing the social norms and expectations of males and a female speaker addressing the impact of assault on victims. Then all members of the Council had to sit in on a mock hearing where they heard a fictional case. It is only when all this is completed that they are permitted to be placed on an actual hearing or appellate panel.
As far as allowing students to sit on the panel, the Department of Education in a footnote to the DCL recommends against it. Brown, along with other schools, allows students to be eligible for these panels and I think there are some good arguments in favor of this approach.
What I find interesting about the original panel and the appeal panel is that 5 were women and only 1 was a man. The two Title IX functionaries were both women. I’m basing this on the names of the individuals, so I could be off base.
Does Brown have 7 female professors and administrators for every 1 male? I doubt it. I see little difference between this and a jury trying a black man that contains perhaps one black person. Surely they could strive for more balance.
I have no opinion at all about the guilt or innocence of the young man, knowing nothing about the case. I just think that this degree of imbalance reflects poor process.
ETA I forgot to add that the investigator was female also. That makes it 8 to 1.
There were plenty of men who completed the training and were members of the Council from which the hearing and appeals panel are chosen. My understanding is that some of them did not pass the conflicts check --male professors who had either party in one of their classes or male students who knew one of them personally – so they ended up with just one male on both the hearing and the appeals panel.
But here’s the funny thing @Consolation – both panels found against John Doe in a 2-1 vote. It is my understanding that in both cases the 1 man sitting on the panel found against him — it was women who voted for him in both the hearing and the appeal.
And just to add that in re-reading my post #8 I misspoke in labelling it a “funny thing.” Think about it – if you were sitting on one of those panels would being a woman cloud your judgment or make you more likely to find for or against him? I doubt it. I think you would call it like you see it.
I give people more credit than that – especially faculty members who interact with students all the time and understand that age group pretty well. I think a lot of people assume agendas that are not there.
…Facebook post by xxxxxxxx encouraging students to email Smith about the case. “These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this,” the court documents stated.
Do you think this also applies to another famous university in the news recently and Judge Curiel?
Well, a jury is essentially a “hearing panel” comprised of unqualified and possibly uneducated individuals.
Juries don’t work for the court where the trial is being held, their work and academic records aren’t dependent upon it, and the court doesn’t have a vested financial interest in the outcome. None of this is true for college tribunals.
Colleges’ funding is tied to how they handle these cases. If there are too many “not guilty” findings, they’ll be investigated and be in danger of losing federal and state funding. College staff bring charges against the student. College employees (who have a vested interest in whether or not the college loses funding) serve on the tribunal. Students (who have a vested interest in whether or not the college loses funding and whether or not the administration and professors are happy with their verdict) serve on the tribunal. There is a clear conflict of interest and it shouldn’t be allowed.
This is not an accurate statement. Funding is tied to the institution’s compliance with the provisions of Title IX which requires them to maintain policies and practices that do not discriminate based on sex. The withholding of funding is written into the regulations surrounding Title IX – it’s how the government enforces many programs that involve federal funds.
But let’s take your claim and apply it to Yale – a school for which we have data. I have linked reports that provide the resolution of the Title IX matters the school has addressed in the last 18 months:
http://provost.yale.edu/sites/default/files/files/August-2016-Report.pdf pg. 7
http://provost.yale.edu/sites/default/files/files/February-2016-Report.pdf pg. 6
http://provost.yale.edu/sites/default/files/files/July2015_Report_FINAL.pdf pg. 6
According to you the school’s funding would certainly have been withdrawn. Are you aware of any school’s funding being withdrawn? The truth of the matter is that for better or worse the majority of these matters are being resolved by no contact orders and counseling. And as you can see there is no shortage of findings of “insufficient evidence to support the claim.” There are some instances of suspension, expulsion or “removal from a program”-- I believe these are the more egregious cases or involve students with a previous history.
It just doesn’t work to take the sensationalized cases in the press and draw conclusions about the overall landscape of Title IX proceedings nationwide.
“All members of the Council … completed an overview of Title IX, Brown’s policies and procedures and of the evidentiary standard. They also had sessions with a male speaker addressing the social norms and expectations of males and a female speaker addressing the impact of assault on victims. Then all members of the Council had to sit in on a mock hearing where they heard a fictional case.”
I’m sorry, this is laughable. We don’t imagine that random college graduates could do a doctor’s job, or an architect’s job, or a CPA’s job, without supervision, after going through some supplemental training like this. Yet somehow the job of a judge overseeing a sexual assault trial – who has three years of post-college professional training in the law, plus licensure, typically followed by 10+ years of legal practice – can be picked up in a weekend seminar and one dry run.
This is the kind of training a professional would undertake to add some new procedure or client challenge to their skill set within their OWN discipline.
I bet the math professor on my student’s panel would not feel that I, with my law degree, have any business teaching a topology class after this sort of introduction to the material.
“Well, a jury is essentially a “hearing panel” comprised of unqualified and possibly uneducated individuals.”
Yes…supervised, controlled, and sometimes overruled by a professional. Juries don’t decide what someone will be charged with or what civil claims are heard. They don’t decide what evidence is admissible. They don’t decide how the hearing is conducted. They are not permitted to ask questions of the parties. Most importantly for this example, they don’t hear appeals because the question is whether the professionals at trial did their jobs correctly.
And juries typically have to be unanimous to convict. These panels weren’t.
It’s not conflict of interest in that these are entities handling issues on an entity level, not civil. It’s important to realize that the first guidelines are about how to respond, a series of guidelines, not how to find (rule.) These are not people pretending to be the equivalent of an attorney, judge, or civil servant, in a court of law.
Now, chances are this thread will run long and hot. I am not disputing that one’s record and future can be affected by a ruling, nor that a victim’s life can be forever changed. Kids can see their lives disrupted by the process and the results. But this is not civil court.
“I am not disputing that one’s record and future can be affected by a ruling, nor that a victim’s life can be forever changed. Kids can see their lives disrupted by the process and the results.”
So, given that, shouldn’t it be more professionally run? Shouldn’t it be consistent and reliable, whether it’s a civil court or not? Even if it is a kind of private arbitration, can people who do this as a sideline to their demanding real job and sit on a couple of panels a year ever achieve that goal?
(This is leaving aside the due process obligations of public institutions, of course.)
I would not want my child’s future at stake in one of these hearings on EITHER side. It’s stunning to me that any victim advocates are OK with this roulette wheel of decisions.
@HarvestMoon1 I did not accuse any individual of an inability to be fair, and like you I noted when reading the piece that both panels voted 2 to 1. As I said, I have no opinion about the outcome of this particular case. I do continue to think that it reflects poor process on the part of Brown’s Title IX administration. It sounds as if they need to train more males.
I also think that you–and I, and probably others–would be disturbed if female accusers routinely found themselves facing a court comprised almost entirely of males. We would say that the college needed to do better.
Universities have been adjudicating disciplinary hearings on their campuses for a very long time – this is nothing new. I suppose we could attack the whole system and throw everything that has a criminal element to the courts (drugs, battery, theft etc.) but I am not sure that’s what anyone really wants to do. You are going to have a large number of very young kids with criminal records and an even more overburdened system.
And I would be happy to see these sexual assault cases proceed through and be addressed by our judicial system – but as we all know the vast majority of these cases never make it past the SART. This leaves the issue of sexual assault unaddressed.
These institutions have received plenty of guidance from the DOE and their legions of lawyers on what a fair proceeding looks like. And from what I can tell the Dear Colleague Letter, which is a summary of that guidance, closely mirrors the established case law establishing just “what process is due” in administrative and college hearings. Administrative hearings are not exclusive to universities. So as far as oversight and guidance, I don’t see it lacking in the tribunal process.
My own view is that it makes more sense to focus on ways to improve college tribunals for all the matters that they address, not just sexual assault. If there is a consensus that more training would be beneficial I doubt anyone would argue. With regard to actual procedures during the hearings I don’t think the DOE is as rigid as some make it out to be. I believe they would be responsive to tweaking procedures that schools reported as problematic.
I wouldn’t want one of my children’s future at stake in either our judicial system or a college tribunal. But usually these things are beyond our control.
@consolation I am not sure that having only one male on the panel is “routine.” It is only a 3 member panel at this particular school – so there will always be some skew. Perhaps it should be a 4 member panel with equal representation.