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Campus Investigations Start By Believing Title IX Trauma Informed

University Administrators Need to Assure Impartial and Fair Investigations, or Face Legal Consequences

SAVE August 10, 2020 The past decade has witnessed a veritable explosion in accused-student Title IX litigation, with over 180 judicial decisions rendered to date that are unfavorable to the university. These lawsuits have exposed universities to costly settlements (and a judgment, in one case)[1], not to mention the attorneys’ fees that likely exceed $100,000

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August 10, 2020

The past decade has witnessed a veritable explosion in accused-student Title IX litigation, with over 180 judicial decisions rendered to date that are unfavorable to the university. These lawsuits have exposed universities to costly settlements (and a judgment, in one case)[1], not to mention the attorneys’ fees that likely exceed $100,000 per case[2].

One of the most frequently litigated issues in these lawsuits is whether the investigation into alleged sexual misconduct was biased against the accused student. These guilt-presuming investigations are known by a variety of names, such as “trauma-informed,”[3] “Start By Believing,” or “victim-centered.”

An impartial investigation is in the interest of both the accused and accusing student. Hence the Department of Education’s Title IX regulations, scheduled to take effect on August 14, require, among other things, fair and impartial investigations:[4]

“A recipient must ensure that Title IX Coordinators, investigators, decision-makers, and any persons who facilitate an informal resolution process, receive training on….. how to serve impartially, including avoiding prejudgment of the facts at issue, conflicts of interest, and bias… recipient also must ensure that investigators receive training on issues of relevance to create an investigative report that fairly summarizes relevant evidence….Any materials used to train Title IX Coordinators, investigators, decision-makers, and any person who facilitates an informal resolution process, must not rely on sex stereotypes and must promote impartial investigations and adjudications of formal complaints of sexual harassment.” [key words in italics]

SAVE hosts an Interactive Spreadsheet that provides a detailed analysis of 138 lawsuits against universities in which the accused student prevailed.[5] Among the 138 cases, the Spreadsheet lists 69 judicial decisions for which the university’s investigation was biased against the accused student – listed in reverse chronological order in the Appendix.

Almost all of the cases come from the trial court level. Of interest, roughly half — 39 — of these opinions involved private universities. There has been a substantial increase in judicial decisions involving biased investigations over the years, suggesting courts’ growing wariness of university procedures:

  • 2014: 3 cases
  • 2015: 2 cases
  • 2016: 5 cases
  • 2017: 14 cases
  • 2018: 15 cases
  • 2019: 15 cases
  • 2020 (six months): 15 cases

At the current pace, the number of lawsuits decided against universities is projected to reach 30 by the end of 2020.

Five of these cases illustrate the often egregious due process violations that the judges considered:

  • In Neal v. Colorado State Univ.-Pueblo, No. 16-CV-873-RM-CBS, 2017 WL 633045 (D. Colo. Feb. 16, 2017), the university opened an investigation into a male student after a classmate saw a hickey on that student’s girlfriend’s neck during class. The girlfriend swore to the university the sex was consensual, but the university decided to “investigate” anyway. The university gave the male student less than 24-hour notice to the hearing and refused to give him a copy of the investigative report.
  • In Doe v. Regents of Univ. of California, 28 Cal. App. 5th 44, 238 Cal. Rptr. 3d 843 (2018), a female student accused a male student of sexual assault without providing any witnesses or evidence. Without any investigation, the university put the male student on interim suspension and then did not allow him access to the investigative report once one was created.
  • In Doe v. Purdue Univ., 928 F.3d 652 (7th Cir. 2019), the university withheld the investigative report, which included a made-up confession by the accused student.
  • In Doe v. Brandeis Univ., 177 F. Supp. 3d 561 (D. Mass. 2016), the university refused to interview the accused student’s witnesses, refused to inform him of what he was being investigated for, and refused to allow him to review the investigative report.
  • In Doe v. Syracuse Univ., 440 F. Supp. 3d 158, 159 (N.D.N.Y. 2020), the accused student alleged that the university trained its investigators that “perpetrators of sexual assault are supposedly rational actors who plan, practice, and become habitual rapists and sexual predators… [and that] inconsistency in the alleged female victim’s account [is] evidence that her testimony is truthful, because of alleged trauma” (internal quotations and citations omitted).

Universities that do not currently conduct impartial and objective investigations should promptly revise their policies and training procedures, both in order to be in compliance with the new Title IX regulation and to avoid costly litigation. Most importantly, they should provide these protections because it is the right thing to do.

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Appendix

Listing of Judicial Decisions Against Universities Involving Biased Investigations, 2014 to Mid-2020

No. Case Caption Citation/Case Number Date of Opinion Judge Court
1 John Doe v. Oberlin College No. 19-3342 29-Jun-20 Kethledge, Raymond U.S. Court of Appeals, Sixth Circuit
2 John Doe v. Purdue University, et al. 2020 WL 2839177 1-Jun-20 Springmann, Theresa U.S. District Court, Northern Dist. Indiana
3 John Doe v. University of the Sciences 2020 WL 2786840 29-May-20 Sanchez, Juan R. U.S. Court of Appeals, Third Circuit
4 Tariq Venegas v. Carleton College Case number: 19-cv-01878 1-May-20 Davis, Michael U.S. District Court, Minnesota
5 John Doe v. Colgate University 2020 WL 2079439 30-Apr-20 Scullin, Frederick Jr. U.S. District Court, Northern Dist. New York
6 John Doe v. Syracuse University 2020 WL 2079513 30-Apr-20 McAvoy, Thomas U.S. District Court, Northern Dist. New York
7 J. Lee v. University of New Mexico, et al. 2020 WL 1515381 30-Mar-20 Browning, James U.S. District Court, New Mexico
8 Hannah Rullo v. University of Pittsburgh 2020 WL 1472422 26-Mar-20 Kelly, Maureen U.S. District Court, Western Dist. Pennsylvania
9 Jacob Doe v. Virginia Polytechnic Institute and State University 2020 WL 1309461 19-Mar-20 Dillon, Elizabeth U.S. District Court, Western Dist. Virginia
10 John Doe v. Rollins College Case number: 6:18-cv-01069 9-Mar-20 Dalton, Roy U.S. District Court, Middle Dist. Florida
11 Kemari Averett v. Shirley Ann Hardy et al. 2020 WL 1033543 3-Mar-20 Hale, David U.S. District Court, Western Dist. Kentucky
12 Feibleman v. Trustees of Columbia University in City of New York 2020 WL 882429 24-Feb-20 Caproni, Valerie U.S. District Court, Southern Dist. New York
13 John Doe v. Syracuse University, et al. 2020 WL 871250 21-Feb-20 Sannes, Brenda K. U.S. District Court, Northern Dist. New York
14 John Doe v. University of Maine System, et al. 2020 WL 981702 20-Feb-20 Torresen, Nancy U.S. District Court, Maine
15 John Doe v. University of South Alabama, et al. 2020 WL 759895 14-Feb-20 Granade, Callie U.S. District Court, Southern Dist. Alabama
16 Unknown Party v. Arizona Board of Regents 2019 WL 7282027 27-Dec-19 Lanza, Dominic W. U.S. District Court, Arizona
17 John Doe v. Tracy Haas, et al. 427 F.Supp.3d 336 9-Dec-19 Hurley, Denis U.S. District Court, Eastern Dist. New York
18 John Harnois v. UMass-Dartmouth, et al. (pro se) 2019 WL 5551743 28-Oct-19 Stearns, Richard U.S. District Court, Massachusetts
19 John Doe v. Quinnipiac University, et al. 404 F.Supp.3d 643 10-Jul-19 Arterton, Janet Bond U.S. District Court, Connecticut
20 John Doe v. Purdue University, et al. 928 F.3d 652 28-Jun-19 Barrett, Amy Coney U.S. Court of Appeals, Seventh Circuit
21 John Doe v. California Institute of Technology Case Number: BS171416 20-Jun-19 Strobel, Mary Los Angeles (CA) Superior Court
22 John Doe v. Rhodes College Case Number: 2:19-cv-02336 14-Jun-19 Fowlkes, John Jr. U.S. District Court, Tennessee, Western Dist.
23 John Doe v. Northern Michigan University, et al. 2019 WL 2269721 28-May-19 Quist, Gordon U.S. District Court, Michigan, Western Dist.
24 John Doe v. Syracuse University 2019 WL 2021026 8-May-19 Hurd, David U.S. District Court, New York, Northern Dist.
25 John Doe v. Westmont College, et al. 34 Cal.App.5th 622 23-Apr-19 Tangeman, Martin California Appeals Court, Second Dist., Div. Six
26 Jack Montague v. Yale University Case Number:  3:16-cv-00885 29-Mar-19 Covello, Albert U.S. District Court, Connecticut
27 William Norris v. University of Colorado 362 F.Supp.3d 1001 21-Feb-19 Babcock, Lewis U.S. District Court, Colorado
28 David Jia v. University of Miami, et al. Case Number: 1:17-cv-20018 12-Feb-19 Gayles, Darrin U.S. District Court, Florida, Southern Dist.
29 Jacob Oliver v. University of Texas-Southwestern Medical School 2019 WL 536376 11-Feb-19 Boyle, Jane U.S. District Court, Texas, Northern Dist.
30 John Doe v. Rollins College 352 F.Supp.3d 1205 16-Jan-19 Dalton, Roy U.S. District Court, Middle District, Florida
31 John Doe v. University of South Florida St Petersburg Case Number: 17-0028AP-88B 21-Dec-18 Day, Jack Circuit Court, Sixth Judicial Circuit, Florida
32 Erik Powell v. Montana State University, et al. 2018 WL 6728061 21-Dec-18 Haddon, Sam U.S. District Court, Montana
33 John Doe v. University of Southern Mississippi, et al. Case Number: 2:18-cv-00153 26-Sep-18 Starrett, Keith U.S. District Court, Mississippi, Southern Dist.
34 John Doe v. Brown University 327 F.Supp.3d 397 27-Aug-18 McConnell, John U.S. District Court, Rhode Island
35 John Doe v. Ohio State University 323 F.Supp.3d 962 20-Aug-18 Smith, George U.S. District Court, Southern Dist., Ohio
36 John Doe v. Johnson & Wales University Case Number 1:18-cv-00106 24-May-18 McConnell, John U.S. District Court, Rhode Island
37 Jane Roe v. Javaune Adams-Gaston, et al. 2018 WL 5306768 17-Apr-18 Sargus, Edmund Jr. U.S. District Court, Southern Dist, Ohio
38 John Doe v. Regents of the University of California Case Number: BS172217 5-Apr-18 Chalfant, James Los Angeles (CA) Superior Court
39 John Doe v. University of Oregon, et al. 2018 WL 1474531 26-Mar-18 Aiken, Ann U.S. District Court, Oregon
40 John Doe v. Marymount University, et al. 297 F.Supp.3d 573 14-Mar-18 Ellis, T.S. III U.S. District Court, Eastern Dist., Virginia
41 Jason Schaumleffel v. Muskingum University, et al. 2018 WL 1173043 6-Mar-18 Smith, George U.S. District Court, Southern District, Ohio
42 Tyler Gischel v. University of Cincinnati, et al. 302 F.Supp.3d 961 5-Feb-18 Dlott, Susan U.S. District Court, Southern Dist., Ohio
43 John Doe v. Miami University 882 F.3d 579 2-Feb-18 Moore, Karen U.S. Court of Appeals, Sixth Circuit
44 John Doe v. Rider University 2018 WL 466225 17-Jan-18 Martinotti, Brian U.S. District Court, New Jersey
45 John Doe v. The Pennsylvania State University 2018 WL 317934 8-Jan-18 Brann, Matthew U.S. District Court, Middle Dist. Pennsylvania
46 John Doe v. Regents of the University of California Case Number: 17CV03053 22-Dec-17 Geck, Donna Santa Barbara County (CA) Superior Court
47 Kathak Saravanan v. Drexel University 2017 WL 5659821 24-Nov-17 Kearney, Mark U.S. District Court, Eastern Dist., Pennsylvania
48 Matthew Rolph v. Hobart and William Smith Colleges 271 F.Supp.3d 386 20-Sep-17 Wolford, Elizabeth U.S. District Court, Western Dist., New York
49 John Doe v. The Trustees of the University of Pennsylvania 270 F.Supp.3d 799 13-Sep-17 Padova, John U.S. District Court, Eastern Dist., Pennsylvania
50 John Doe v. Case Western Reserve University, et al. 2017 WL 3840418 1-Sep-17 Nugent, Donald U.S. District Court, Northern Dist., Ohio
51 Frank Gulyas v. Appalachian State, et al. 2017 WL 3710083 28-Aug-17 Voorhees, Richard U.S. District Court, West. District, North Carolina
52 John Nokes v. Miami University 2017 WL 3674910 25-Aug-17 Barrett, Michael U.S. District Court, Southern Dist., Ohio
53 Cameron Jackson v. Liberty University, et al. 2017 WL 3326972 3-Aug-17 Moon, Norman U.S. District Court, Western Dist. Virginia
54 Nicholas Mancini v. Rollins College 2017 WL 3088102 20-Jul-17 Dalton, Roy U.S. District Court, Middle Dist. Florda
55 In the Matter of John Doe v. Skidmore College 59 N.Y.S.3d 509 13-Jul-17 Garry, Elizabeth Appellate Division (NY) Third Department
56 Koh Tsuruta v. Augustana University 2017 WL 11318533 16-Jun-17 Schreier, Karen U.S. District Court, South Dakota
57 John Doe v. University of Notre Dame 2017 WL 1836939 8-May-17 Simon, Philip U.S. District Court, Northern Dist. Indiana
58 Grant Neal v. Colorado State University-Pueblo 2017 WL 633045 16-Feb-17 Schaffer, Craig U.S. District Court, Colorado
59 John Doe v. Western New England University 228 F.Supp.3d 154 11-Jan-17 Ponsor, Michael U.S. District Court, Massachusetts
60 John Doe v. Brown University 210 F.Supp.3d 310 28-Sep-16 Smith, William U.S. District Court, Rhode Island
61 John Doe v. Columbia University 831 F.3d 46 29-Jul-16 Laval, Pierre U.S. Court of Appeals, Second Circuit
62 John Doe v. Weill Cornell Medical College of Cornell University Case Number: 16-cv-3531 20-May-16 Pauley, William U.S. District Court, Southern Dist. New York
63 John Doe v. University of Southern California 246 Cal.App.4th 221 5-Apr-16 Collins, Aubrey CA Court of Appeals Second District, Division Four
64 John Doe v. Brown University 166 F.Supp.3d 177 22-Feb-16 Smith, William U.S. District Court, Rhode Island
65 John Doe v. Washington and Lee University 2015 WL 4647996 5-Aug-15 Moon, Norman U.S. District Court, Western Dist. Virginia
66 Drew Sterrett v. Heather Cowan, et al. 85 F.Supp.3d 916 4-Feb-15 Hood, Denise U.S. District Court, Eastern Dist. Michigan
67 Abrar Faiaz v. Colgate University 64 F.Supp.3d 336 24-Nov-14 Baxter, Andrew U.S. District Court, Northern Dist. New York
68 Benjamin King v. DePauw University 2014 WL 4197507 22-Aug-14 Lawrence, William U.S. District Court, Southern Dist. Indiana
69 Dezmine Wells v. Xavier University 7 F.Supp.3d 746 12-Mar-14 Spiegel, Arthur U.S. District Court, Southern Dist. Ohio

 

[1] https://www.insidehighered.com/news/2019/09/25/jury-sides-former-boston-college-student-accused-sexual-assault

[2] https://www.insidehighered.com/news/2019/10/03/students-look-federal-courts-challenge-title-ix-proceedings

[3] https://www.mindingthecampus.org/2019/09/20/fake-claims-of-rape-due-to-trauma-under-scrutiny/

[4] 34 CFR §106.45(b)(1)

[5] http://www.saveservices.org/sexual-assault/complaints-and-lawsuits/lawsuit-analysis/