Judge invalidates Brown ruling in sexual assault lawsuit

Parents Forum
61

@ohiodad51 I must admit I am reluctant to engage with you on these issues as our discussions in the the past have pretty quickly devolved into unpleasantness. But your last post directed to me seems reasonable enough so I will respond.

I think it would be helpful to back up and look at the big picture before delving into specific issues. At some point we have to deal with and accept the reality of the legal landscape that surrounds Title IX – while I enjoy the academic posturing back and forth these are simply our own opinions of what an ideal world looks like. But they have no bearing on the framework actually out there for dealing with these disputes and so really are just pie in the sky.

You believe that all sexual assault cases should be handled by the courts. That’s fine, not an unreasonable position. But the fact remains that when Title IX was expanded in the late 80’s to include sexual harassment, it gave college women the right to file sexual assault complaints with their universities. The courts during the last 40 years have continued to uphold that right. I haven’t seen any litigation lately attacking Title IX’s applicability to sexual harassment on college campuses. So it’s not the DOE or the DCL that is at the root of your dissatisfaction, it is the court’s interpretation of Title IX giving college women rights that you think they should not have.

So from where I sit, to get to where you want to be (only option is to report to police) we are going to have to go back and undue the interpretation of Title IX that gave women these rights. I just think that is a huge mountain to climb and an unlikely eventuality. So to continually harp on “sexual assault should only be adjudicated by the courts” seems futile – college women have other venues available under well established law. My own view is that the focus should be on improving those systems if in fact they are here to stay.

So I guess I am asking do you honestly think that Title IX is going to be revised to obliterate the coverage for college women to file sexual harassment claims with their universities?

Let’s start there and see how we do.

62

I’m more interested in what Ohiodad says, but I do think there will be review and modifications from the current lawsuits. The current implementation is faulty and that is being generous. I also believe that the colleges should turn sexual assault matters over to the police for resolution and sanctions should be limited to no-contact pending the outcome of a police investigation. No-contact should not be so restrictive that seeing someone crossing campus or going through a cafeteria line or at the football game becomes a violation. The no-contact should apply equally to both parties int he dispute.

63

“while male college students are getting the message”

I see males of color – particularly black ones – popping up disproportionately in my Title IX practice. At a minimum, nonwhite males don’t enjoy any special protection in this process.

Re: the rulemaking process, the current lawsuit alleging that the Dear Colleague Letter was improperly issued is worth a read. You can read the complaint against the Board of Ed here:

https://www.washingtonpost.com/news/grade-point/wp/2016/06/16/former-u-va-law-student-files-suit-challenging-federal-sexual-assault-directive/

64

@harvestmoon1, not to “devolve into unpleasantness”, but I do not accept your characterization of my opinion. I understand that that is how you wish to phrase the issue so you get to the answer you are looking for, but I disagree.

If you are interested in a kind of technical opinion, I think the largest problem is the effort to equate what is happening on campuses with actual criminal conduct. Had things remained as formulated in your second to last sentence (a matter of sexual harrasment) I doubt there would be half the uproar that we see, if for no other reason than the stigma attached to a finding against a student would be far less. Additionally, I assume that penalties have grown more severe as we have shifted from the language of harrasment to the language of assault.

But instead of acknowledging that there is a fair distance between two college kids having drunk sex and forcible rape, there has been a huge and consistent effort to speak in the language of felony and violence. It appears to me that this effort has been made because there are those that believe it is the way to grab the attention of the populace, and that they felt this would be a net positive. I think this has backfired, because the cases which get reported in the press show a largely ideological process which bears no resemblence to our general western notions of fairness.

I also have a significant problem with the kind of classist notion that it is ok to send violent criminals out into the streets, just as long as they are not at the local college frat parties, preying on coeds. Obviously, if these are all cases of assault and rape, and if people really believe the silly surveys, then a woman who goes to her Title IX advocate instead of the police is putting other women at risk. Seems to me that either colleges and the OCR should acknowledge that what they are adjudicating is not criminal conduct, or they should admit that they don’t really care what happens to women who don’t pay tuition.

And although I assume you do not agree I think the obvious ham handedness of the OCR during the last several years is off putting. People are not used to seeing the government blatantly punish those who it disagrees with, and the numbers of investigations that begin and end based on number of hearings, resources put into compliance and number of convictions is unpleasant. I think that also hurts the larger cause, if there are those who really believe that colleges are populated by roving bands of rapists.

Now, to your direct question. I think if Clinton wins then things will get more robust on campus as much of her presumptive base will be college aged women. If Trump wins I would think the OCR backs way off, since much of his presumptive base will be people who do not trust the government. It is the risk of operating by fiat rather than rule making, which I have mentioned before.

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@Ohiodad51 : I don’t have any actual statutes in front of me, but I would think that a common definition of criminal sexual assault would be touching of a sexual nature involving genitals or women’s breasts where the person doing the touching knows (or implicitly knows) that the person being touched has not consented. Tortious, non-criminal sexual assault would be the same thing, except would not require strict scienter; negligent failure to understand that consent had not been given would be enough. While it’s great to use the criminal model, the basis for the federal Title IX position is that the civil tort standard is more than enough to support administrative remedies by colleges, and I find it very hard to disagree with that point on a theoretical level.

If that, or something like it is the standard, then why in the world would you think that it doesn’t happen on college campuses. I agree completely that two college kids having drunken sex is not per se sexual assault, but the fact that both parties are drunk doesn’t mean that sexual assault is impossible under the circumstances, either. Some drunk sex is in fact unconsented. Some drunk sex involves an incapacitated party who was not capable of consenting. And while it’s fun for lawyers to imagine hypotheticals that make proof of those facts, or of knowledge of those facts, difficult, sometimes it’s not so difficult. Sometimes someone really did know, or really should have known, that he was doing something wrong, And it’s hardly a bad thing to have rules that tell young men – “Don’t think about going right up to the line. If you are anywhere near the line, it’s on you to back off.” That’s a much better rule than “Maybe you can get away with it if you were drunk enough not to notice she was passing out.”

Note that most “rape” definitions require force or coercion, but that would not be true of sexual assault, a lesser included offense. So, sure, many sexual assaults may not look as horrific as a forcible rape, and few sexual assaults will conform to the model of an evil, perverted man (often with dark skin) hiding in the bushes, or breaking into a home, in order to have his way with innocent young women while he holds a knife to their (often alabaster) throats. That doesn’t make them negligible, or not worth addressing. I think the colleges/DOE are going too far too fast, but let’s not kid ourselves that there’s no problem to address.

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I like the FIRE case. They found a good case. He said/she said…two years between the alleged assault as lack of consent and the actual claim. Confusion over what the OCR requires and when. Sanctions that can impact his career as an attorney. Lifetime ban from UVA property. A college “hired judge” who was shaky in his decision but felt “compelled” to decide based on “guidance.” And finally a “victim” who probably will be deposed and also ultimately end up in a courts for a long time (and where she should have put this in first place in my opinion). Granted the “case” is about violation of the administrative procedures act, but that combined with all the latest outcomes will definitely put more pressure on the OCR and from there back onto the colleges.

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@jhs, as always, the devil is in the details. What is available to us in the reported cases are examples of college tribunals attempting to adjudicate what would be, at best, fringe cases of lack of consent in any courtroom, whether ciovil or criminal. I don’t want to go through all this again, but a simple reading of many of the OCR approved policies, let alone many of the reported cases, disclose that these are intended to be, or at least can be, strict liability cases. That’s nuts, if your intent is to “teach” young men what is acceptable and what is not. If your intent is to allow young women a maximum degree of freedom from consequences, then maybe it makes a kind of perverted sense.

As I bet you know, difficult cases are heavily process dependant, and when college tribunals attempt to adjudicate months and years old “he said/she said” cases, the flaws in their process are stark. This is particularly true because what we consistently see is not that a tribunal says “You know what, we have no idea what happened last year. You both should be more careful.” Instead we see an obviously flawed process pushed beyond its limits, and a gross effort to find fault regardless of whatever contemporaneous evidence exists. There was even an “investigator” who recently admitted that she would ignore exculpatory evidence because she felt her job in investigating the claim was to look for evidence that the claim was true. Whether this type of effort is made from a fear of reprisal from the OCR, a general ideological bent to believe and protect the alleged victim or some other reason is unknown to me. But I think it is obvious.

What I am saying is that in such an enviornment, discussing these types of cases as if they were actual crimes, or throwing guys out of school based on what appears to be little more than a whim, is off putting to say the least. That’s my objection.

It is an equally good idea to tell young women that they are responsible for their own actions. I strongly disagree with the mind set that in non forcible sexual encounters the responsibility is placed solely on the man. I am just not smart enough to hold in my head the idea that women are equal in all things except the bedroom. I have a son and a daughter. I expect the same level of good sense and fortitude from both.

68

Said Marco Rubio and Jeb Bush.

It’s a lot closer of a race than you think, and a heck of a lot closer than I ever thought it would be.

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I agree with you OhioDad and alluded to it earlier that I do not think women are being counseled well as to their personal responsibilities and the potential impact of an accusation. I don’t disagree that something has occurred in our youth that has shifted the horizon in terms of casual sex, but colleges are in the business of educating and if they have a whole lot of kids having sex and not understanding the repercussions of that activity (and while I don’t believe in the 1 in 4 or 1 in 5 the sheer numbers of people who claim to have had unwanted relationship experiences tell me neither men nor women really understand WHAT they are doing) – then colleges can do more to educate as opposed to adjudicate. I’m not quite understanding why we’re so afraid to go there with our young women especially unless there is some underlying desire by society as a whole to retain that concept of women as virginal and submissive and men as sexual and aggressive and frankly I thought we were decades and decades away from that type of thought. You betcha if I had a daughter I’d be talking, talking, talking…just like I did with my sons. About personal responsibility about potential legal liabilities, about healthy relationships, about drinking to excess.

And yeah. The race …maybe I’ll be in that segment that moves to Canada :slight_smile:

70

Friends, while this discussion is fascinating, with your legal viewpoints, we have to distinguish between “the law (policy,) as it is written,” and what individuals feel would be better.

And I can’t be the only one noticing some long posts cover so much ground (some neat reflection on policy and and also some veering into opinion, what ifs, or the comparison to criminal/civil process, etc ) that it’s difficult to reply effectively. It clouds.

“I assume that penalties have grown more severe as we have shifted from the language of harrasment to the language of assault.”

Not necessarily. There are studies we strenuously debated on other threads. And depends in part on the individual colleges and their particular polices for implementing T9.

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@JHS: There is no lawful basis for imposing humiliation in an EPO. It’s also morally repugnant. There is similarly no requirement that a person confront a restrained person to enforce the order. In the university setting that person can simply ask university personnel. In any other setting (or even in the school) that person can call the police.

It’s irrelevant whether the schools use a criminal or civil model. Both systems have due process requirements and neither allows an interested party to investigate or adjudicate.

@HarvestMoon1: Legally it makes no difference to the question of whether the DCL qualifies as rule making whether or not schools were already in compliance. The question there is whether the DCL applies with the force of law or imposes new requirements. The DCL can impose a new requirement even if everyone already was doing it.

72

“these are intended to be, or at least can be, strict liability cases.”

Agreed.

“what would be, at best, fringe cases of lack of consent in any courtroom, whether civil or criminal”

Right. I have a client who was suspended for until his accuser graduates (two years) from a CC “top university” this spring. No drinking involved. He repeatedly asked his long-term girlfriend for oral sex on a particular night. She did it after 3 or so requests. A short time time later, he broke up with her for unrelated reasons. She complained to a university staff member, who reported the incident. There is no suggestion that there was any physical threat, blackmail, etc., just a wheedling boyfriend. The university found him responsible for sexual misconduct – not assault, though the penalty is indistinguishable – because he put emotional pressure on her to have a sexual encounter.

No tort lawyer with half a brain would take that case. Heart balm statutes aren’t a thing any more.

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WOW There seems like their is a lot of victim blaming going on here. @Hanna I assume you are not a tort lawyer nor have you ever tried a PI case in front of a jury. Please correct me if I am wrong

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@Ohiodad51 re #63.
I am perplexed by your first paragraph – I was not trying to elicit any particular answer from you. How does your answer either way help me? Really, you read too much into things.

My purpose in asking you the question was to help frame the issues within the context of the legal landscape that currently exists. All of our opinions are wonderful, but we still have to deal with what’s out there and what might change in the foreseeable future. Wishing and opining doesn’t make it so - not for me or for you.

So if you answered that you disagreed with my thought that a re-interpretation of Title IX resulting in abolishing the university hearing system was unlikely, then my question to you was going to be how do you envision that being accomplished? My own review of the law and the college disciplinary system in it’s totality indicates it would be very hard to legally get there without directly discriminating against women. But perhaps there is something I am missing either in administrative or civil rights law (not my areas of practice) – so I saw those as issues for discussion.

If you answered you agreed with my thought that it would be hard to abolish the disciplinary system, then I envisioned moving on to discuss the validity of the last DCL and the due process requirements for those hearings. And yes, before I asked the question I was operating under the impression that nothing short of abolishing the hearings was going to make you happy --so why waste time discussing what we thought those hearings should look like? You were just going to continue groaning about their very existence and we go round and round. Best to find common ground as a starting point and move on from there.

So now from your post #63 I think I am reading that you might be fine with the hearings if they were limited to dealing with sexual harassment as you define it? Not sure here what you are saying so you will have to clarify. Title IX includes sexual assault in the definition of sexual harassment – we don’t get to define it. You can’t just make sweeping generalizations that what is happening today on campuses does not constitute assault. Some cases are and some aren’t – the resolutions reflect that reality. And I agree that some of these cases are very hard to adjudicate – so does that mean we don’t even try?

As to your last paragraph dealing with rule making, my understanding is that there was at least one DCL prior to the one issued on April 4, 2011. That letter was open to comment and dealt with many of the issues surrounding procedure in these hearings. But I have not personally seen it so will not comment until I do.

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Wow, I don’t know how universities can make these types of decisions unchecked. I’m just shaking my head. This sounds like the kind of case where it might make sense to go for an injunction at the moment to stop the college from suspending and then gain some time to figure it out. Hell hath no fury like a woman scorned is an idiom for a reason and not too far from the truth here.

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@HarvestMoon1: I think @Ohiodad51 agrees with me (and he’ll correct me if I’m wrong) that it is possible for universities to properly conduct hearings, but they don’t. The school could hire a trained investigator (such as a retired police officer), outsource adjudications to a trained neutral (such as an arbitrator) under a system that ensured due process for the accused. There would also need to be representation and cross-examination. If limited to sexual harassment, this would probably be doable. But even if you cure all the outrageous defects, it’s kind of silly to enact a shadow court when you have the real thing already set up.

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" I don’t know how universities can make these types of decisions unchecked"

I have a couple of comments. First if the perpetrator feels they were unfairly treated in the administrative hearing they can certainly seek a court order and review . That is what happened in the Brown case. As an aside Tom Brady sought judicial review of his administrative decision with the NFL

Lots of cases are decided by arbitrators who are not judges or lawyers. There is a reason why PI cases and criminal cases are decided mostly by juries. Criminal defendants and PI plaintiffs most of the time would much rather have their fate in the hands of ordinary citizens than judges that might have a political agenda.

Personally I think there is nothing wrong with the system of expulsion. A lot of students have gotten away with boorish offensive and deplorable behavior against women for way too long

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@Demosthenes49 any school that uses the single investigator model is using an outside investigator - usually a trained attorney or a professional. See my #36 where I linked one company being utilized. Here is more on that trend and arguments for and against it:

https://www.insidehighered.com/news/2015/06/30/colleges-turning-judges-campus-sexual-assault-cases

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@collegedad13- question as to your reference to @Hanna …

Are you suggesting that if her facts as related in post #72 are completely accurate, that the young woman in her case was a “victim” of a sexual assault?

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@collegedad13 -

“There is a reason why PI cases and criminal cases are decided mostly by juries.”

Is this true?

Don’t the vast, vast majority of PI and criminal cases get settled/pled out after negotiations involving licensed legal professionals? Or go to arbitration/binding mediation with trained, licensed lawyers and retired judges as the panelists?

I think the percentage of cases - civil or criminal - that actually go to juries is quite small.