Lawsuit: IU Violated Title IX By Suspending Male Student Accused Of Rape

Due Process, Equal Opportunity, title IX

A male student is suing Indiana University for Title IX violations, alleging the school’s investigation into rape accusations was biased against him because of his gender.

It’s the latest in a series of lawsuits invoking the federal civil rights law on behalf of men accused of sexual assault.

The Incident

The complicated details of the case begin in September 2017, when both John Doe and Jane Doe acknowledge they had sexual intercourse at a fraternity house. The two later learned someone else had taken a photo of them during intercourse and had shared it with others.

The photo was reported to IU officials and an investigation began a few days later. The university ultimately found two people responsible for taking and distributing the photo.

In May 2018, the school launched a new investigation after Jane reported she was too drunk to give consent that night and accused John of sexual assault.

Indiana University Police investigated and the Monroe County Prosecutor’s Office declined to file rape charges.

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According to documents filed with the lawsuit, an IU panel heard testimony from both students; they gave conflicting accounts about the night, with John reporting that he verbally asked Jane for consent.

The panel determined in November that John “did not know or reasonably should not have known that Complainant was incapacitated,” but also determined he “more likely than not” violated sexual consent code of conduct policies. The panel also determined John allowed that photo to be taken.

His punishment included a four-year suspension, a no-contact order with Jane Doe, and a prohibition to be on campus during the suspension.  For a copy of the current lawsuit, click here…  395469534-John-Doe-v-Indiana-University-Title-IX-Violation-Complaint 

For the full article, click here… 

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Pierre R. Berastaín Ojeda to lead Harvard Office of Sexual Assault Prevention and Response

Equal Opportunity, title IX

Pierre Berastaín Ojeda ’10, M.Div. ’14, has been appointed director of the Office of Sexual Assault Prevention and Response (OSAPR), starting in June, Harvard University announced today.  Berastaín returns to Harvard from the National Latin@ Network for Healthy Families and Communities, a federally funded, Latino-specific institute for gender-based violence in the U.S. In his role as assistant director there, Berastaín led multiyear federal grant programs under the U.S. Department of Health and Human Services and the U.S. Department of Justice and conducted training nationally on sexual assault, intimate-partner violence, and stalking. He worked with federal agencies, colleges and universities, state coalitions addressing domestic and sexual violence, shelters, and community programs on violence intervention and prevention initiatives.  For the full article, click here… 

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Title IX and Defamation: An Emerging Challenge Facing Higher-Education Institutions

Equal Opportunity, title IX

There is currently a national focus on gender-based harassment. College campuses are no different. Even with the changes to Title IX guidance in the past months,1 eliminating sexual harassment and assault on campuses remains a national priority. One overlooked result of this focus is defamation litigation facing higher-education institutions.

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Students found to have violated university sexual harassment and sexual misconduct policies are fighting back in the courts. According to a 2015 study by United Educators (a large national insurance provider for colleges and universities), approximately 60% of Title IX-related lawsuits are brought by respondents (those accused of sexual misconduct).2 Respondents are asserting defamation claims against the individual who accused them as well as the university that disciplined them. The idea is that statements made by the accuser, through the course of a campus sexual assault investigation, are defamatory if the statements can be shown to be false. It has been reported that 72% of accused students who file a Title IX-related lawsuit against their university also sue their individual accuser for defamation.  For the full article, click here… 

Judge has to decide if discrimination claim against Duke sees trial

title IX

Hoping to stave off a mid-summer trial, Duke University has once again asked a federal judge to dismiss a former student’s gender-discrimination lawsuit that claims it botched the handling of a sexual-misconduct investigation.

University officials uncovered the incident, found the woman and encouraged her to report it, investigated it and offered her support services, all in line with their obligations under federal Title IX anti-discrimination law, lawyers for Duke said in a recent motion asking U.S. District Court Judge Catherine Eagles to end the case.

All that’s very far from the sort of “deliberate indifference” that would justify a finding of discrimination, they said, adding that when schools investigate misconduct complaints, federal courts in this part of the country “have not allowed juries to second-guess” the choices they’ve made along the way.  Pending since 2016, the lawsuit concerns an incident that happened in March 2011 and an investigation that concluded in 2013. Durham lawyer Bob Ekstrand – of Duke lacrosse case fame – is representing the former student and has argued the fact that one of the two men she accused is the stepson of former Provost Peter Lange, which he alleges influenced the university’s handling of the case.

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Ekstrand’s original filings alleged his client was the victim of a “drug-facilitated rape” that one of the men secretly videotaped.

The court file, however, paints a much more convoluted picture.

Originally, Ekstrand’s client wasn’t even the focus of a campus police investigation that began in April 2011 when Duke’s student affairs office learned of rumors that a woman had shown up outside a campus dorm “apparently very intoxicated and unaware of her location.”

That initial report didn’t pay off directly, as police never found that woman, who wasn’t a student. But it tipped them to the March incident, leading them to the two men, the video and eventually Ekstrand’s client.

She turned out to have no direct memory of the incident, and apparently flip-flopped at least once on whether she’d consented. She admitted to having used alcohol and inferred from her lack of memory that someone might have drugged her.

Campus police consulted Durham prosecutors, but eventually decided not to pursue a criminal case, in part because she waffled about her willingness to testify. Another factor, former campus policeman David Dyson said in a 2012 report, was “serious doubts that the incident was non-consensual,” based on a video where the woman’s “speech was not slurred and she was making quick responses to what the males said.”

A parallel campus student-conduct investigation, meanwhile, was slow to develop momentum again because the woman wasn’t sure how she wanted to proceed. She took a semester off in the spring of 2012, and by Duke’s account didn’t give the student affairs office a statement on the case until the spring of 2013.

That led to a mid-summer student-conduct hearing that, by the woman’s account, led to one of the men being “fully acquitted” and the other receiving a light punishment – probation, other court filings indicate. Rather than appealing that ruling, she complained to Duke’s Office of Institutional Equity, which eventually decided there was “insufficient evidence” to say the university had “denied rights under Title IX or subjected [her] to a hostile environment.”

Ekstrand, meanwhile, likely is on the back foot because a 10-month pretrial “discovery” evidence-gathering period came and went in 2017 without him asking to depose any witnesses in the case. He essentially ceded the field on that to Duke.

At the end of November, he asked for another two months, but Judge Eagles said no.

“Deadlines are in place for a reason,” namely so cases can move “efficiently and fairly” toward a conclusion, she said.

Former Provost Lange’s attorney, Kerry Sutton, is tracking the case and on Friday said she thinks Duke’s stance is “well-supported by the facts and the relevant law.”

Duke has asked Eagles to shut down the case before, but in late 2016 she declined that request.

SUNY Albany Sued For Title IX Violations After Elimination Of Women’s Tennis Team

title IX

The State University of New York at Albany (SUNY Albany) abruptly eliminated the women’s tennis program in March, stranding players—all but one of whom are from other countries and are on student visas—and violating Title IX regulations, according to a lawsuit filed Friday in U.S. District Court for the Northern District of New York. The suit also alleges age discrimination against the team’s coach, Gordon Graham, who was fired shortly after the team was cut.  For more, click here…

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Gov. Jerry Brown of California is poised to sign a bill that will codify the Obama-era sexual assault guidelines

title IX

From the NY Times – California’s law explicitly applies to children in public kindergarten, elementary and high schools.  California lawmakers quickly passed the bill last week after Education Secretary Betsy DeVos announced on Sept. 7 that she will roll back the guidelines set forth by the Obama administration in 2011.  Survivors of sexual assault and their advocates, including those in the California legislature, roundly denounced Ms. DeVos’s decision.  For more, click here…

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Title IX Standard of Proof: Who’s Choice is it Anyways?

title IX

As colleges nationwide grapple with the newly-issued Title IX guidance procedures by the Trump administration, many questions remain as to which standard of proof to choose and who gets to make the choice.  “Betsy DeVos announced the policy change in a press conference Friday afternoon, saying universities are now free to abandon that standard—known as “preponderance of the evidence”—and instead adopt a higher standard, “clear and convincing evidence.” In a statement Sunday, Harvard University Title IX Officer Nicole M. Merhill wrote that “the Title IX Office and Office for Dispute Resolution know of no current plan to change the standard of evidence” after DeVos’s statement.” 

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Arguably, the choice as to the standard of proof could be a mandatory subject of bargaining with a campus labor union (terms and conditions of employment) or a matter of management rights depending upon which state the college is in.  Alternatively, the voice of the academic community and students, in particular, may also be a deciding factor for many colleges.  In other states, there may be statutes that directly address these concerns as to which evidentiary standard of proof is most appropriate as well as the definition of consent.  Division I colleges with major athletic programs, small liberal arts colleges, religious-affiliated schools and colleges with major corporate funding may all view this choice very differently.  Insurance premiums that colleges pay to various insurers in order to defend Title IX claims may also be impacted depending upon which standard of proof a college chooses.

The choice is not an easy one.  The University of Colorado—Boulder, for example, will continue using the preponderance of the evidence standard in sexual misconduct cases in the immediate future, as reported by the Daily Camera.  The California State University system will also keep its policies, including the use of the preponderance of the evidence standard and its policy allowing all parties to appeal, according to a statement from Chancellor Timothy White.  Yale University does not plan to change its standard of proof.

In a press release issued on Friday, the Clery Center provided the following takeaways from the Department’s new guidance (key aspects of the document are in bold; non-bolded is Clery Center context or comments.):

  • The Department will still rely on its 2001 Revised Sexual Harassment Guidance which went through a notice-and-comment process. This includes the current definition of responsible employees, who are still required to report and institutions must still respond if the institution knows or reasonably should know of an incident of sexual misconduct.
  • The Q&A reinforces the function of interim measures. Also referenced as accommodations under the Clery Act, these services make sure the parties have necessary support prior to or during an investigation. As a reminder, under the Clery Act, it is not necessary for an individual to file a formal complaint in order to access these accommodations (such as living, academic, transportation, or working accommodations).
  • The institution’s process must be prompt and equitable and conducted by trained individuals; however, the letter notes that there is no fixed time frame under which a school must complete a Title IX investigation. Clery also requires a prompt, fair, and impartial disciplinary process. Although Clery does not establish timeframes either, a prompt proceeding per Clery is one that is “completed within reasonably prompt timeframes designated by the institution’s policy, including a process that allows for extension of timeframes for good cause, with written notice to the accuser and the accused of the delay and the reason for the delay” with “timely and equal” notice of meetings and access to any information that will be used during informal and formal disciplinary meetings and hearings. Your policies should specify this timeframe, as should your institution’s annual security report.
  • The Q&A allows for informal resolution of complaints. Mediation was not permitted in previous guidance, and despite the withdrawal of previous guidance, it’s extremely important to note that, even in the updated Q&A, all parties must voluntarily agree to participate in an informal resolution in order to implement such a process.
  • The document specifies that the findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing standard. The standard used in such cases must be the same as the standard used for all other student conduct cases. We’d encourage institutions to remember that about 70% of institutions were using the preponderance standard prior to the 2011 letter. The White Paper “Title IX and the Preponderance of the Evidence Standard” provides the history of this standard in civil rights law and past enforcement of Title IX.
  • The document notes that if a school chooses to allow appeals from its decisions regarding responsibility and/or any disciplinary sanctions, the school may choose to allow appeal (i) solely by the responding party or (ii) by both parties, in which case any appeal procedures must be equally available to both parties. Although neither Clery nor Title IX require an appeal process, Clery does require a prompt, fair, and impartial process “from the initial investigation to the final result”, which includes any appeal processes, if they exist.

The Clery Center also stated that it looks forward to “providing our feedback to the Department on where the previous Title IX guidance (2011 and 2014) provided important information to colleges and universities that ensured the prompt, fair, and impartial process required by both Title IX and the Clery Act. Guidance is important, but it’s also important that such guidance does not leave room for campus processes to be manipulated or abused to only benefit one party. As a result, the public comment process will play an important role in giving voice to all individuals impacted by sexual violence.”

 

Hobson’s Choice – Preponderance or Clear & Convincing Evidence and Campus Labor Unions – Mandatory Subject of Bargaining?

Uncategorized

With the new changes to Title IX guidance this month, interesting questions must be answered regarding which evidentiary standard to choose and whether campus labor unions will have a seat at the table when institutions make their respective choices.  Arguably, this choice may be a mandatory subject of bargaining depending upon state law.  “‘Clear and convincing evidence’ means evidence greater than a preponderance of the evidence but not quite as high as the evidence necessary for a criminal conviction.”  To show clear and convincing evidence, “a party’s evidence should be unequivocal and uncontradicted, and intrinsically probable and credible.” 

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Whether in a Title IX sexual assault investigation there can ever be credible evidence that is truly “unequivocal and uncontradicted” in order to satisfy the clear and convincing standard is a compelling subject for further research.

What are your initial thoughts?

Sixth Circuit Finds Lack of Procedural Due Process in Title IX Disciplinary Hearing

Uncategorized

In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge’s grant of a preliminary injunction against the university suspension of student John Doe. The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear.   For more, click here…

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