Month: September 2021

Categories
Campus Investigations Title IX

Brett Sokolow: Dogged Pursuit of a Separate Reality

Brett Sokolow: Dogged Pursuit of a Separate Reality

SAVE

September 24, 2021

The overriding purpose of a campus Title IX adjudication is to evaluate the truthfulness of the allegation. The due process procedures used to achieve this goal include objective investigations, live hearings with cross-examination, impartial adjudications, and an opportunity for appeal, all buttressed by the presumption of innocence.

Following the release of the Dear Colleague Letter (DCL) in 2011, suspended and expelled students began to file hundreds of lawsuits alleging violations of due process. Eventually, judges would issue over 200  decisions favorable to the students.

Six years after the issuance of the DCL, ATIXA president Brett Sokolow issued an upbeat assessment of the current state of due process on college campuses. Modestly titled, “One Response to Congressional Task Force Roundtable,” Sokolow dismissed any need to revitalize due process protections, concluding that “we need to be pushing back as an association and as a field” on the premise that campus processes lack “procedural rigor.”

None of his claims were supported by any references to case law, research, or even anecdotes. Indeed, a careful review of Sokolow’s assertions reveals that four of them are so contrary to existing case law as to suggest Sokolow was unaware of — or had chosen to ignore — the numerous judicial decisions that had been issued as of October 30, 2017, the date that Sokolow published his Response.

Sokolow’s four claims are presented below, verbatim and in italics, followed by a listing of the pertinent judicial decisions that had been issued before the date of the Sokolow pronouncement:

  1. Transparent Investigations and Access to Evidence: “Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;”

Contradicting the Sokolow assertion, 13 judicial decisions were issued prior to October 30, 2017 that documented deeply flawed investigative procedures:

  1. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
  2. Doe v. The Trustees of the Univ. of Pennsylvania, 270 F. Supp. 3d 799, 816–17 (E.D. Pa. Sep. 13, 2017)
  3. Doe v. The Trustees of the University of Pennsylvania, 270 F. Supp. 3d 799, 817 (E.D. Pa. Sep. 13, 2017)
  4. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
  5. Tsuruta v. Augustana University, No. CIV. 4:16-4107-KES, 2017 WL 11318533, at *3 (D.S.D. June 16, 2017)
  6. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
  7. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
  8. Ritter v. Oklahoma City Univ., W.D. Okla. No. CIV-16-0438-HE, 2016 WL 3982554, at *2 (W.D. Okla. July 22, 2016)
  9. Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016)
  10. Doe v. Ohio State University, No. 2:15-CV-2830, 2016 WL 1578750, at *3 (S.D. Ohio Apr. 20, 2016)
  11. Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602, 619 (E.D. Va. Feb. 25, 2016)
  12. Doe v. Georgia Board of Regents, No. 1:15-cv-04079-SCJ, at *37-38 (N.D. Ga. Dec. 16, 2015)
  13. Doe v. Washington and Lee University, No. 6:14-CV-00052, 2015 WL 4647996 (W.D. Va. Aug. 5, 2015)

The judge’s language was particularly strong in Doe v. Georgia Board of Regents: “To put it bluntly, [investigator] Paquette’s testimony at the preliminary injunction hearing about the course of the investigation and the manner in which he made certain investigatory decisions was very far from an ideal representation of due process. (Pg. 37)…Much remains for the Court’s consideration as to whether Mr. Paquette’s investigation veered so far from the ideal as to be unconstitutional.”

Regarding adequate access to evidence, three decisions underscored schools’ failures in this area:

  1. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *11 (S.D. Ohio Aug. 25, 2017)
  2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
  3. Marshall v. Indiana University, 170 F. Supp. 3d 1201 (S.D. Ind. Mar. 15, 2016)

In Marshall v. Indiana University, the judge noted, “the Defendants do not deny that they are in sole possession of all information relating to the allegations made by and against [respondent] Marshall, notably refusing, at all times, to share such information with Marshall or his attorneys.”

  1. Credible Evidence: “Colleges respect key procedural rules, including requiring that evidence be relevant and credible…”

Sokolow’s claim is challenged by three decisions issued prior to October, 2017 that revealed failures to conduct credibility assessments of the complainant:

  1. Arishi v. Washington State Univ., 196 Wash. App. 878, 908, 385 P.3d 251, 265 (2016)
  2. Doe v. University of Notre Dame, No. 3:17CV298-PPS/MGG, 2017 WL 7661416, at *10 (N.D. Ind. May 8, 2017)
  3. Mock v. University of Tennessee at Chattanooga, No. 14-1687-II, at *14 (Tenn. Ch. Ct. Aug. 4, 2015)

In Arishi v. Washington State Univ., the judge explained, “But the fact that [complainant] MOS did not testify and was never cross-examined undermines confidence in the outcome. This is particularly so in light of evidence undermining her credibility: she misrepresented her age on Badoo as 19, misrepresented ‘Alex’s’ age to her mother, was going out during the daytime when she was supposed to be doing homework at home, was driving illegally, and had a different version of events when interviewed by Sergeant Chapman than she did when interviewed twice by Detective Dow.”

  1. Evaluation of Evidence: “Colleges allow and seek expert evidence and testimony as needed;”

In contrast to the Sokolow characterization, seven judicial decisions that highlighted school deficiencies in the evidence evaluation had been handed down prior to his statement:

  1. Painter v. Adams, W.D.N.C. No. 315CV00369MOCDCK, 2017 WL 4678231, at *7 (W.D.N.C. Oct. 17, 2017)
  2. Richmond v. Youngstown State University, No. 4:17CV1927, 2017 WL 6502833, at *1 (N.D. Ohio Sep. 14, 2017)
  3. Mancini v. Rollins Coll., M.D. Fla. No. 616CV2232ORL37KRS, 2017 WL 3088102, at *5 (M.D. Fla. July 20, 2017)
  4. Doe v. Brown University, 210 F. Supp. 3d 310, 339 (D.R.I. Sep. 28, 2016)
  5. Doe v. Brown University, 166 F. Supp. 3d 177, 185 (D.R.I. Feb. 22, 2016)
  6. Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079, at *15 (N.D.N.Y. Feb. 24, 2016)
  7. King v. DePauw Univ., S.D. Ind. No. 2:14-CV-70-WTL-DKL, 2014 WL 4197507, at *13 (S.D. Ind. Aug. 22, 2014)

In Painter v. Adams, the judge revealed: “Here, defendants maintain in their Memorandum in Support of summary judgment that ‘plaintiff presented no documentary evidence’ at the disciplinary hearing. However, it appears that he presented no documentary evidence because he was prevented from doing so. The evidence, viewed in a light most favorable to the party resisting summary judgment, shows that he was prevented from placing into the record exculpatory physical evidence, which raises a concern as to whether plaintiff was denied Due Process.”

  1. Cross-examination: “Colleges allow questioning of the parties, if not cross-examination in its purest form.”

Six judicial decisions had been issued before October 2017 that exposed deficiencies in schools’ cross-examination procedures:

  1. Doe v. Univ. of Cincinnati, 872 F.3d 393 (6th Cir. Sept. 25, 2017)
  2. Doe v. Glick, No. BS163739, 2017 WL 9990651, at *9 (Cal.Super. Oct. 16, 2017)
  3. Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401 (W.D.N.Y. Sep. 20, 2017)
  4. Nokes v. Miami University, No. 1:17-CV-482, 2017 WL 3674910, at *12 (S.D. Ohio Aug. 25, 2017)
  5. Collick v. William Paterson Univ., D.N.J. No. 16-471 (KM) (JBC), 2016 WL 6824374, at *11 (D.N.J. Nov. 17, 2016)
  6. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014)

In Doe v. Glick, for example, the judge revealed, “Further, Respondent [Glick] appears to have told [complainant] Roe she could answer Doe’s questions in advance in writing, a procedure not found in either the 2013 or 2016 Pomona policy. Finally, the Complainant did not attend the hearing personally, or through Skype, even though the hearing date was arranged to accommodate Roe’s schedule.”

Unsubstantiated Claims

On September 5, 2017, almost two months before Sokolow made his claims, the Foundation for Individual Rights in Education released the findings of its Spotlight on Due Process survey of due process policies at 53 top universities. Reporting on findings that FIRE characterized as “dire,” the survey found:

  • 6% of top universities did not guarantee students that they will be presumed innocent until proven guilty.
  • Only 47.2% of schools required that fact-finders be impartial.
  • 9% of schools were assigned a ‘D’ or ‘F’ grade for dismal due process policies.

But Sokolow apparently was unaware of the FIRE survey. To the contrary, Sokolow concluded his upbeat assessment by noting, “I think this is enough and should be enough to satisfy a judge.” So “colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford,” Sokolow argued.

In an August 2021 presentation, Sokolow finally did acknowledge the existence of a “tide of litigation.” But inexplicably, Sokolow attributed the lawsuits to “a decade of conflicting guidance, judicial intervention, and inconsistent enforcement” (Brett Sokolow and Terri Lakowski, Time With IX. Slide No. 12) — not to the Kangaroo Court-like procedures that scores of judges had struck down during the preceding 10 years.

Sokolow’s unsubstantiated claims reveal a determined effort to pursue an alternate reality that bears little relationship to the current realities of campus Title IX adjudications.

Categories
Wrongful Convictions

$6.9M Award for Connecticut Man Cleared of 2 Rapes After More Than a Decade Behind Bars

$6.9M Award for Connecticut Man Cleared of 2 Rapes After More Than a Decade Behind Bars

September 16, 2021

A central Connecticut man who spent 12 years in prison for two rapes—that now even the state says he didn’t commit—has been awarded $6.9 million, thanks to DNA testing that exonerated him.

Plaintiffs counsel Rosemarie Paine of Jacobs & Dow in New Haven said DNA results were made public in 2014 and cleared her client, Luis Figueroa. But those 12 years he spent behind bars, plus five more on probation during which he had to enlist in mandated sex offender programs, “turned his life upside down,” she said.

“The DNA left no doubt in anyone’s mind that he did not commit the sex assaults, but what the [claims] commissioner saw was the irrefutable evidence of how this mistaken identification and wrongful conviction infected every area of his life,” Paine said Thursday. “It held him back in every way. Because he was listed as sex offender, it was difficult for him to get housing and he was frequently homeless.”

The rape conviction stems from alleged assaults on two separate women, in March and April 1995. In both cases, the alleged victims were shown photographs the police had of Figueroa, who had been arrested before for two larcenies related to car theft and an assault stemming from a street fight.

In the claimant’s post-hearing memorandum, Paine wrote that, with regard to the second sexual assault, “Despite the fact that the victim never identified [Figueroa] as her assailant, [he] was nevertheless charged with her assault on the basis of the Yale student’s [the first victim] photo identification of him as her perpetrator.”

Figueroa was incarcerated from 1995 to 2007. He was sent to prison when he was 20, and is now in his mid-40s.

In her memorandum of decision in the matter, Claims Commissioner Christy Scott said Figueroa suffered unfairly.

“The claimant was a young man still wondering where his life would lead when a mistaken identification set him on a road of suffering and shame,” Scott wrote. “A day came when the truth was known—he was innocent—and that truth should have eased his pain, but those who knew it did not share it and he continued to suffer for five long years more.”

Scott was referring to the fact that the DNA results were known in 2009, but not made public until a Freedom of Information Act request was made five years later.

Scott wrote that the truth “helped ease his pain, but it could not erase it. The damage was done. … Compensation cannot fully repair the damage done, but it may perhaps help to smooth the claimant’s path back to health and peace.”

Scott awarded Figueroa $6.9 million, which has since been disbursed.

Source: https://www.law.com/ctlawtribune/2021/09/16/6-9m-award-for-connecticut-man-cleared-of-2-rapes-after-more-than-a-decade-behind-bars/?kw=%246.9M%20Award%20for%20Connecticut%20Man%20Cleared%20of%202%20Rapes%20After%20More%20Than%20a%20Decade%20Behind%20Bars%20%7C%20Connecticut%20Law%20Tribune&utm_source=email&utm_medium=enl&utm_campaign=dailyheadlines&utm_content=20210921&utm_term=nlj

Categories
Campus Title IX

ATIXA: Catherine Lhamon Senator Support Template Letter

ATIXA: Catherine Lhamon Senator Support Template
Letter

Download the word document template to customize and e/mail to your Senator now!

[Insert Senator Name Here]

[Insert Senator Office Name Here]

[Insert Address Here]

Dear [Insert Senator Name Here]:

I write to express my support for Catherine Lhamon’s nomination to be Assistant Secretary for the Office for Civil Rights at the US Department of Education. [I’ve admired Ms. Llhamon’s dedication in her roles as the Chair of the US Commission on Civil Rights, as Legal Affairs Secretary to Governor Newsom, and in her current role as the Deputy Director of the Domestic Policy Council at the White House with a focus on equity.

During her time leading the US Commission on Civil Rights, Ms. Lhamon took on the issue of fair wages for adults with disabilities under the Fair Labor Standards Act. As part of this work, she

recognized the importance of taking a bipartisan approach to this issue, and eschewed ideological dogmatism. The same was true of her first tenure with The Office for Civil Rights (OCR) from 2013-2017. Early on, she led efforts to ensure that victims of discrimination were well-protected, but her team at OCR also demonstrated that when circumstances indicated a need for Title IX to also be protective of the rights of respondents, including due process rights, Llhamon’s team was responsible for issuing the Wesley College Resolution. This seminal document was widely circulated to higher education in 2017 to signal that OCR enforced Title IX to ensure fairness to all, not just to victims.

In addition, her work at OCR increased transparency, by ensuring that enforcement actions were widely promoted and disseminated from the OCR website to schools in the field, when a key investigation finding was added to the online database. ATIXA expects a return to that consistent practice during the current administration.]

Thank you for taking the time to consider supporting the nomination of Catherine Lhamon to the Department of Education’s Office for Civil Rights. Your constituents in [insert state] are interested in your choice on this nomination and hope we have your support..

Very truly yours,

Brett A. Sokolow, JD

Source: https://www.atixa.org/resources/catherine-lhamon-senator-support-template-letter/  September 14, 2021

Categories
Coercive Control Domestic Violence

What is Domestic Violence by Proxy?

What is Domestic Violence by Proxy?

By Joan T. Kloth-Zanard

September 12, 2021

Domestic Violence is the act of physically, psychologically or sexually using various methods, behaviors, comments and/or actions to coercively control another human being.  Coercive Controlling behaviors include but are not limited to any of the following.  (Taken from “Where Did I Go Wrong?  How Did I Miss the Signs? Dealing with Hostile Aggressive Parenting and Parental Alienation, 2nd Edition” by Joan Kloth-Zanard, p. 16-19)

  • Rejecting
  • Terrorizing
  • Corrupting
  • Denying essential stimulation, emotional responsiveness, or availability
  • Unreliable and inconsistent parenting
  • Mental health, medical, or educational neglect
  • Degrading/devaluing
  • Isolating
  • Exploiting

 

Let’s take this a bit further in its application. When a parent REJECTS a child because the children show any love or affection for the Targeted Parent that is a form of abuse.  This is not only a form of rejection, but terrorization.  In fact, a child’s refusal to come to the Targeted Parents home for fear of losing the Alienating Parent’s conditional love is fear and fear is terror.

Next, there is corrupting.  When an Alienating parent refuses to comply with court orders and tells the children they do not have to either, this is corrupting.  It is teaching the children that they are above the law and therefore immune to the court’s authority.  When a parent files false allegations of abuse and convinces the children to do the same, this is corruption. When an Alienating parent tells the children lies about the Targeted Parent, and that anything having to do with the Targeted Parent is illegal, immoral and disgusting, this is corrupting.  In fact, this is a form of discrimination and prejudice, which corrupts the children’s minds.

Next, let’s look at Denying essential stimulation, emotional responsiveness, or availability.  By refusing to allow the children to have a relationship with the Targeted Parent, for no reason other than their own need to control the ex-spouse, the Alienating Parents are denying them the basic elements of stimulation, emotions and availability with the Targeted Parent. In fact, the Targeted Parent has little to no opportunity to defend themselves against the false allegations. Though they will have you believe that they or the children feared for their lives and that the Targeted Parent was abusive, this is usually unsubstantiated or proven by the courts to be a fabrication. With no basis for this denial, the Alienator refuses their children a warm and loving relationship with the Targeted Parents.  Thus, it causes unreliable and inconsistent parenting.  Since the children have been denied a relationship with the Targeted Parent, they have also been denied a reliable and consistent parenting situation and the Alienating Parent has proven that they cannot parent consistently and reliably in the supporting of a two-parent relationship with the children.

This brings us to the Mental, medical and Education Neglect.  When an Alienating Parent refuses to comply with numerous separate court orders for counseling, they are denying their children’s mental health.  Thus, mental neglect has occurred as defined in the DSM IV as Malingering. (V65.2) and by Neglect of Child (V61.21).

If despite numerous court orders or request and recommendations, the alienator continues to insult, verbally abuse and denigrate the child’s Targeted Parent in front of them, this behavior degrades and devalues someone the children once respected and loved and in most cases, secretly want a relationship with.  This disdain and disrespect for the Targeted Parent in front of the child(ren) is another form of Psychological Maltreatment as it permanently affects their view of that Targeted Parent, which transfers to their view of themselves.   This creates a distorted sense of reality, of themselves and their ability to trust and accurately judge others.

When a parent deliberately sabotages a relationship with the Targeted Parent by refusing to allow visits, calls, or any form of healthy communication, with no evidence of abuse, this is called Isolation.  Furthermore, when a parent has initially allowed continuous contact with the children during the separation and divorce period, but reneges on this refusing them visitation, especially when they find out their ex-spouse has a new partner, this is isolation and abuse.  This is also called Remarriage as a Trigger for Parental Alienation Syndrome and can be further reviewed in an article by Dr. Richard Warshak, There is no doubt this is isolation and thus psychological abuse.  (http://www.fact.on.ca/Info/pas/warsha00.htm)

And finally, EXPLOITATION.  When a parent uses the children as pawns to get back at their ex-spouse for not loving them anymore or to control them further, this is exploitation and Domestic Violence by Proxy.  When an Alienating Parent uses the children and makes false allegations of abuse, terrorizing the children to state they hate the Targeted Parent, this is exploitation.  When a parent uses the children for monetary gains, but yet does not allow the children a relationship with the targeted parent, this is exploitation.

When you add all these factors up, it is easy to see how Cross-Generational Coalitions, Parental Alienation, Parental Alienation Syndrome, Enmeshed Relationships, Triangles and Borderless Boundaries can be classified as Psychological Maltreatment or abuse.

But what happens when the perpetrator wants to abuse someone but they no longer have a direct contact with that person or wish to remain anonymous about their revenge?  Then they use something called Domestic Violence by Proxy.

‘By Proxy’ means using a substitute or alternate way through someone or something else.  In the case of DV, it is would related to doing harm to another through someone or something else.  For example, if your children or your extended family and friends are vitriol and nasty, parroting whatever the other person says, this is DV by Proxy as they are using these people to sling harmful and hurtful insults and psychological trauma.  If a person such as a child comes to your home and is destructive or violent toward the other person/parent, this is domestic violence by proxy as it uses the children to exact their revenge and anger.  Basically, the aggressive person brainwashes and programs others into a cult of hatred, anger and rage toward the other person.

Another example is false allegations.  When a person files false allegations with an agency such as child protective services or a Women’s DV Group, this is DV by Proxy using an agency.  When that agency fails to find or substantiate the allegations, and the person now files false criminal charges in the local courts, this is DV by proxy using the courts.

When a person constantly files motions and veracious litigation causing malicious prosecution, intentional infliction of emotional distress, negligent infliction of emotional distress, perjury, slander, defamation, custodial interference, impede with medical/educational care or even loss of employment, this is Domestic Violence by proxy.  This means that a person does not have to be face to face with their victim to perpetrate Domestic Violence when they can use a proxy to do it.  And this grows their control and abuse by bringing in more people, places and things to abuse the other person with.

Conclusion:

Domestic Violence by Proxy invovles the coercive control of parental alienation through psychological abuse and use of rejecting, terrorizing, corrupting denying essential stimulation, emotional responsiveness, or availability, unreliable and inconsistent parenting, mental health, medical or educational neglect degrading/devaluing, isolating and exploiting.

Or put another way:

Domestic Violence by Proxy exploits others and agencies in causing psychological abuse through parental alienating behaviors to coercively control another human being by rejecting, terrorizing, corrupting denying essential stimulation, emotional responsiveness, or availability, unreliable and inconsistent parenting, mental health, medical or educational neglect degrading/devaluing, isolating and exploiting.

Categories
Campus Office for Civil Rights Sexual Assault Sexual Harassment Title IX

Continued Wave of Judicial Decisions Reveals Absurdity of Catherine Lhamon ‘Civil Rights’ Nomination

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Continued Wave of Judicial Decisions Reveals Absurdity of Catherine Lhamon ‘Civil Rights’ Nomination

WASHINGTON / September 13, 2021 – Judges have handed down over 200 Title IX decisions against colleges and universities in recent years (1). Ironically, the civil rights abuses that led to these lawsuits occurred as a direct result of the policies that were promoted by the federal Office for Civil Rights, which Catherine Lhamon directed from 2013 to 2016.

On May 13, 2021, the White House announced its intention to nominate Lhamon to head up the Department of Education’s Office for Civil Rights (2). During the four months following the White House announcement, the wave of judicial decisions against schools continued apace, with eight additional decisions handed down that are adverse to schools:

  1. May 28: Doe v. Embry-Riddle Aeronautical University ruled that the college failed to conduct an impartial investigation. and was biased against Doe because the college failed to investigate his counterclaims of sexual assault (3).
  2. June 1: Doe v. Regents of the University of Minnesota held the district court erred in dismissing Doe’s Title IX claim because Doe plausibly stated the college was biased against him because of his sex (4).
  3. June 15: Doe v. University of Denver found that the district court failed to apply the correct summary judgment standard, the accused plausibly stated that the college was biased against the accused because of his sex, and the college failed to take into account the accuser’s materially false statements (5).
  4. June 23: Munoz v. Strong held that Michigan State University failed to afford the accused the due process protections guaranteed by the Fifth Amendment (6).
  5. June 25: Doe v. Hobart and William Smith Colleges found that the accused student plausibly claimed the college was biased against him because of his sex, and the college failed to review relevant evidence (7).
  6. August 1: Doe v. Columbia University ruled that the accused student plausibly stated the college was biased against him because of his sex, and the college failed to conduct an impartial investigation and review relevant evidence (8).
  7. August 23: Moe v. Grinnell College held that the college failed to provide adequate notice, conduct an impartial investigation, and review relevant evidence (9).
  8. August 28: Doe v. Lincoln-Sudbury Region et al concluded that the school failed to fulfill notice requirements and acted in an arbitrary manner in issuing a retraction letter “clarifying” the results of a sexual assault investigation (10).

These eight rulings turned not on nuanced or arcane legal precepts, but rather on egregious civil rights violations of students’ due process rights:

  • In half of the cases, the judicial rulings confirmed illegal sex discrimination against the male student: Doe v. Regents of the University of Minnesota, Doe v. University of Denver, Doe v. Hobart and William Smith Colleges, Doe v. Columbia University,
  • In Doe v. Lincoln-Sudbury Region et al, the due process violations were so severe that Judge Dennis Saylor removed the qualified immunity protections of school officials.
  • Two rulings — Doe v. Regents of the University of Minnesota and Doe v. University of Denver — were issued by appellate judges, thereby establishing legal requirements in the Eighth and Tenth circuits.

The average settlement value for a Title IX lawsuit against a university ranges in the mid-to-high six figures (11). The average settlement value for a lawsuit against a school official is currently unknown.

During her August 3 committee hearing, Catherine Lhamon did not express regret, or even acknowledge, that the policies enforced during her previous OCR stint had created a spate of civil rights abuses. Under direct questioning, Lhamon declined to affirm her belief in a single due process protection. Indeed, Lhamon revealed her opposition to the presumption of innocence, saying that Title IX adjudicators “should be open to the possibility” that the accused party is not guilty (12).

Lhamon’s actions and statements reveal that she would be an “anti-civil rights” director of the Office for Civil Rights. SAVE calls on senators to reject the inexplicable nomination of Catherine Lhamon.

Citations:

  1. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
  2. https://www.whitehouse.gov/briefing-room/statements-releases/2021/05/13/president-biden-announces-his-intent-to-nominate-catherine-lhamon-for-assistant-secretary-for-civil-rights-at-the-department-of-education/
  3. 6:20-cv-01220-WWB-LRH (M.D. Fla.)
  4. 19-2552 (8th Cir.)
  5. 19-1359 (10th Cir.)
  6. 1:20-CV-984 (W.D. Mich.)
  7. 6:20-cv-06338 EAW (W.D.N.Y.)
  8. 1:20-cv-06770-GHW (S.D.N.Y.)
  9. 4:20-cv-00058-RGE-SBJ (S.D. Iowa)
  10. 20-11564-FDS (Dist. Mass.)
  11. https://www.saveservices.org/2021/07/universities-pay-for-costly-title-ix-settlement-agreements/
  12. https://www.saveservices.org/2021/07/ocr-nominee-catherine-lhamon-repeatedly-side-steps-questions-about-campus-due-process/
Categories
Campus Title IX

Campus Officials at Growing Risk of Loss of Qualified Immunity

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Campus Officials at Growing Risk of Loss of Qualified Immunity

WASHINGTON / September 9, 2021 – Since 1982, employees of public institutions have been shielded from lawsuits by the doctrine of qualified immunity (1). Recent legal decisions reveal that courts now are rethinking the doctrine, both in the criminal system and on college campuses.

In three cases, Taylor v. Riojas, McCoy v. Alamu, and Tanzin v. Tanvir, the U.S. Supreme Court signaled its willingness to reconsider the long-standing qualified immunity defense (2). These decisions led court watchers to conclude that the “Supreme Court may now be entering a new dawn on qualified immunity, and judges of all levels should take notice.” (3)

Even if the Supreme Court ends up not revisiting the issue, school officials can no longer depend on the doctrine when engaging in conduct that clearly violates students’ due process rights. Indeed, Circuit Courts have denied school officials’ attempts to invoke a qualified immunity defense in three recent Title IX decisions:

  1. Eleventh Circuit: Doe v. U. of Southern Alabama – 2020
  2. Sixth Circuit: Doe v. Michigan State U – 2020
  3. First Circuit: Doe v. Lincoln-Sudbury Region et al – 2021

In Doe v. University of Southern Alabama, Doe alleged the defendant school officials were not entitled to qualified immunity because (1) the defendant school officials acted outside their discretional authority, and (2) the defendant school officials violated Doe’s constitutional right to due process that was clearly established. Although the court ruled that the school officials acted inside their discretional authority, the district court found that Doe “sufficiently alleged a claim that the decision-makers were biased.” Because the due process principle “is clearly established, the Defendants are not entitled to qualified immunity if [Doe] can demonstrate that they were biased.” (4)

In Doe v. Michigan State University, the Plaintiff’s constitutional claim addressed the right to a live hearing and cross-examination. The district court cited to Doe v. University of Cincinnati stating, “the Sixth Circuit held that ‘cross examination is essential to due process only where the finder of fact must choose between believing an accuser and an accused.’”  Thus, the Sixth Circuit accepts cross examination as a due process guarantee, making it “clearly established.” Because the disciplinary proceedings in this case were initiated in February 2018, which was after the Sixth Circuit’s decision in University of Cincinnati, the plaintiff has plausibly demonstrated a violation of a clearly established right, thus eliminating the defendant school officials’ qualified immunity defense at the pleading stage (5).

In Doe v. Lincoln-Sudbury Region et al the complaint plausibly alleged that a retraction letter “clarifying the results” of the school’s sexual assault investigation and concluding that the plaintiff was guilty of sexual assault violated the plaintiff’s right to due process. The defendant student officials failed to “notify him” about retracting the letter and failed to provide him a “meaningful opportunity to be heard” before the issue of the retraction letter. Looking at whether the right is clearly established, the First Circuit noted it had been clearly established that due process safeguards must be afforded when someone is deprived of their property interests. Thus, the district court concluded that “no reasonable school official would have understood that their conduct—issuing the letter, which they allegedly knew to be unsupported by the underlying evidence, without notice or opportunity to be heard—would satisfy due-process requirements.”  (6)

In Doe v. Lincoln Sudbury Regional School Committee, the court set out the following test to assess whether to defendant school officials were protected under qualified immunity; “[t]he [district] court must determine (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right, and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” The Doe v. Michigan State University decision relied upon a similar test.

Removal of the qualified immunity defense has occurred in at least one other campus case. In Business Leaders In Christ v. the University of Iowa, et. al., the Eighth Circuit denied qualified immunity to University officials who discriminated against a Christian student group since the case law on the free exercise of religion is so clear and undisputed (7).

SAVE’s “Analysis of Judicial Decisions Affirming the 2020 Title IX Regulations” summarizes over 200 court decisions that are consistent with the recent amendments to the Title IX regulations (8). In nearly one-quarter of these cases, judges cited constitutional due process or equal protection bases to support their decision.

Officials at public schools need to think twice before they violate the clearly established constitutional protections of students, or they may find themselves personally liable for civil rights violations (9).

Citations:

  1. https://www.law.cornell.edu/wex/qualified_immunity
  2. https://reason.com/volokh/2021/03/10/is-the-supreme-court-preparing-to-end-qualified-immunity/
  3. https://www.usatoday.com/story/opinion/2021/03/02/supreme-court-might-rethinking-qualified-immunity-column/4576549001/
  4. https://casetext.com/case/doe-v-univ-of-s-ala-1
  5. https://docplayer.net/200777324-Case-1-18-cv-jtn-sjb-ecf-no-77-filed-09-01-20-pageid-789-page-1-of-27.html
  6. https://kcjohnson.files.wordpress.com/2021/08/doe-v.-lincoln-sudbury-mtd.pdf
  7. https://ecf.ca8.uscourts.gov/opndir/21/03/191696P.pdf
  8. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
  9. https://www.nas.org/blogs/article/make-university-administrators-pay-and-watch-things-change

Addendum of September 10: Also see editorial by Greg Lukianoff and Adam Goldstein: Administrators who violate the 1st Amendment rights do not deserve protection of qualified immunity

Categories
Campus Title IX

ATIXA Refers to SAVE Press Release as ‘Crap’ and Using ‘Scare Tactics’

ATIXA Refers to SAVE Press Release as ‘Crap’ and Using ‘Scare Tactics’

SAVE

September 4, 2021

On September 1, SAVE issued a press release criticizing Brett Sokolow’s statement about cross-examination: https://www.saveservices.org/2021/09/title-ix-officials-who-undermine-due-process-place-themselves-at-risk-of-loss-of-qualified-immunity/

As a service to the SAVE readership, we providing a copy of the press release, as well as the ATIXA response, below. We invite persons to compare the ATIXA claims with the actual statements of the SAVE press release.

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SAVE Services Scare Tactics

Brett Sokolow via ATIXA <atixa+brett.sokolow_at_atixa.org@gaggle.email> Unsubscribe
5:15 PM (11 minutes ago)
to ATIXA

SAVE Services is sending the crap below around, which you may have seen. We’ll talk about this tomorrow during the Time with IX, but briefly:

  • They’re clearly not happy with my conclusion about cross-examination, but note they neither refuted it nor suggested I was wrong.
  • Instead, they resorted to scare tactics about qualified immunity, which is a complete red herring. Why?
  • Their legal analysis is just bad. I never said college don’t need to provide for cross-examination, I just said the parties no longer have to submit to it. If the parties opt out, how does that put any college or administrator at risk of losing qualified immunity? It doesn’t, as long as you still abide by the regs.
  • Their whole argument conflates cross-examination with the suppression provision, which confuses apples and oranges.

More tomorrow…

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PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

WASHINGTON / September 1, 2021 – A recent decision from the District Court of Massachusetts highlights a growing trend of judges to disallow qualified immunity defenses in Title IX lawsuits. The decision sounds a warning to campus officials who have been advised to curtail cross-examination procedures. The consulting firm TNG recently recommended to Title IX personnel: “If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions.” (1) [emphasis added]

The Doe v. Lincoln-Sudbury Region et al lawsuit arose from an allegation of sexual misconduct in the high school setting. In this case, the initial Title IX investigation reached inconclusive results. But rather than finding the accused student “not responsible,” school administrators arbitrarily retracted the initial letter and replaced it with a finding of guilt (2).

In last Friday’s decision, Judge Dennis Saylor began his analysis with a history lesson: “More than thirty years ago, the First Circuit found that it had ‘long been “clearly established” that due process safeguards must be afforded’ when ‘persons are deprived of property interests.’”

The Court then rejected the school officials’ claim of qualified immunity: “Accordingly, defendants’ motion to dismiss Count 1 will be denied to the extent that it seeks dismissal of the §1983 claim as to Wong, Ramos, and Elenbaas in their individual capacities.” Wong is the district superintendent, and Ramos and Elenbaas are co-chairs of the school’s Title IX program.

In 2014, District Judge William Martinez first affirmed the necessity of cross-examination in the Title IX context. He highlighted that “the only evidence presented by the university was the unsigned, two-page list of events,” and that the complainant was not present at the hearing (3).

Over the ensuing years, a total of nine appellate court and 23 trial court decisions have been issued that affirm the essential role of cross-examination in campus hearings (4). Some of the opinions use emphatic and obligatory language. In Doe v. Westmont College, for example, California Appeals Court Judge Martin Tangeman ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (5) [emphasis added]

None of the judicial rulings to date contemplate the possibility that a school official might actually advise a complainant to “just refuse to answer all cross-examination questions.”

Citations:

  1. https://www.jdsupra.com/legalnews/implementing-the-cardona-decision-for-1783273/
  2. https://kcjohnson.files.wordpress.com/2021/08/doe-v.-lincoln-sudbury-mtd.pdf
  3. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014).
  4. https://www.saveservices.org/2021/08/32-judicial-decisions-have-upheld-cross-examination-in-title-ix-cases/
  5. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019).

Posted: https://www.saveservices.org/2021/09/title-ix-officials-who-undermine-due-process-place-themselves-at-risk-of-loss-of-qualified-immunity/

Categories
Campus Due Process Title IX

Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

Title IX Officials Who Undermine Due Process Place Themselves at Risk of Loss of Qualified Immunity

WASHINGTON / September 1, 2021 – A recent decision from the District Court of Massachusetts highlights a growing trend of judges to disallow qualified immunity defenses in Title IX lawsuits. The decision sounds a warning to campus officials who have been advised to curtail cross-examination procedures. The consulting firm TNG recently recommended to Title IX personnel: “If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions.” (1) [emphasis added]

The Doe v. Lincoln-Sudbury Region et al lawsuit arose from an allegation of sexual misconduct in the high school setting. In this case, the initial Title IX investigation reached inconclusive results. But rather than finding the accused student “not responsible,” school administrators arbitrarily retracted the initial letter and replaced it with a finding of guilt (2).

In last Friday’s decision, Judge Dennis Saylor began his analysis with a history lesson: “More than thirty years ago, the First Circuit found that it had ‘long been “clearly established” that due process safeguards must be afforded’ when ‘persons are deprived of property interests.’”

The Court then rejected the school officials’ claim of qualified immunity: “Accordingly, defendants’ motion to dismiss Count 1 will be denied to the extent that it seeks dismissal of the §1983 claim as to Wong, Ramos, and Elenbaas in their individual capacities.” Wong is the district superintendent, and Ramos and Elenbaas are co-chairs of the school’s Title IX program.

In 2014, District Judge William Martinez first affirmed the necessity of cross-examination in the Title IX context. He highlighted that “the only evidence presented by the university was the unsigned, two-page list of events,” and that the complainant was not present at the hearing (3).

Over the ensuing years, a total of nine appellate court and 23 trial court decisions have been issued that affirm the essential role of cross-examination in campus hearings (4). Some of the opinions use emphatic and obligatory language. In Doe v. Westmont College, for example, California Appeals Court Judge Martin Tangeman ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (5) [emphasis added]

None of the judicial rulings to date contemplate the possibility that a school official might actually advise a complainant to “just refuse to answer all cross-examination questions.”

Citations:

  1. https://www.jdsupra.com/legalnews/implementing-the-cardona-decision-for-1783273/
  2. https://kcjohnson.files.wordpress.com/2021/08/doe-v.-lincoln-sudbury-mtd.pdf
  3. Johnson v. W. State Colorado Univ., 71 F. Supp. 3d 1217, 1223 (D. Colo. Oct 24, 2014).
  4. https://www.saveservices.org/2021/08/32-judicial-decisions-have-upheld-cross-examination-in-title-ix-cases/
  5. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019).