Category: Campus

PR: Most Americans Want Due Process on Campus, Despite Protests

Post author By saveadmin
Post date September 4, 2018

Contact: Rebecca Stewart

Most Americans Want Due Process on Campus, Despite Protests

WASHINGTON / September 4, 2018 – Last week the New York Times leaked information about a sex discrimination regulation that the federal Department of Education is expected to issue this Fall. In response, campus activists assailed the policy as “downright cruel” and “willfully ignorant.” (1)

These statements contrast with the views of most Americans. According to a 2017 survey of 1,200 persons conducted by YouGov, persons overwhelmingly agree that students accused of a felony level crime should be afforded due process (2):

— A full 81% of respondents said the accused should have the right to know the charges against him.

— 71% of persons polled said accused students should be sanctioned under the “clear and convincing” standard of evidence.

— 61% said accused students should have the right to cross-examine their accusers.

— 67% agreed that students accused of crimes on campus should enjoy the same legal protections that would receive in a court of law.

These findings held across the entire political spectrum. For example, 58% of Democrats, 70% of Republicans, and 60% of Independents agreed that accused students should have the right to cross-examine their accusers.

Due process procedures serve to ascertain the truthfulness of an alleged sexual offense. The importance of these procedures was evident in the recent case of Nikki Yovino, former student at Sacred Heart University, who was convicted of falsely accusing two men of rape. On August 23, Yovino was sentenced to serve one year in jail (3).

SAVE’s Campus Equality, Fairness, and Transparency Act outlines a series of procedures designed to maximize fairness for both accusers and the accused (4). To date, the editorial boards of the New York Daily News and the Detroit News, as well as numerous commentators, have written editorials in support of bolstering campus due process protections (5).

Citations:

http://endrapeoncampus.org/new-blog/2018/8/29/statement-on-new-york-times-reports-on-proposed-title-ix-guidance

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault: www.saveservices.org

Campus Sexual Assault

Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

Post author By saveadmin
Post date August 13, 2018

Contact: Rebecca Stewart

Telephone: 513-479-3335

Email: info@saveservices.org

Responding to Judicial Scoldings, State Legislators Seek to Rein in Campus ‘Kangaroo Courts’

WASHINGTON / August 13, 2018 – The movement to restore due process in campus sexual assault cases is gaining momentum, as lawmakers in several states have worked to restore due process and fairness in campus sexual assault proceedings. The trend began with California Governor Jerry Brown’s 2017 veto of a bill that would have solidified a number of anti-due process policies on campus. The trend is now being propelled by a surge of lawsuits by accused students against universities and colleges.

“In a stunning collective judicial rebuke to many campuses’ unfair treatment of students accused of sexual misconduct, courts have issued at least 102 rulings against universities since 2011, compared with 88 rulings in their favor,” notes a recent report (1). Many of the decisions were written using pointed language that was strongly critical of the university policies procedures. In 46 other cases, colleges have opted to settle the lawsuit prior to a judicial decision, rather than pursue expensive and potentially embarrassing litigation (2).

In two states, pro-due process bills have been introduced in 2018, but not enacted into law:

In South Carolina, House Bill 3303 would provide students with reasonable notice, a presumption of non-responsibility for the accused, the right to have an attorney who can participate in proceedings, and impartial fact-finders (3).

In Ohio, public colleges would be required to develop sexual-misconduct policies “with the goal of enhancing due process,” under a bill that has passed the House and moved to the Senate (4).

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill passed both the Senate and House with strong bipartisan support (5).

In three other states, bills that erode due process protections have been sidelined:

In Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators, a provision that had been derided as “junk science.” (6)

In Colorado, House Bill 18-1391 was approved in the House. But the bill failed to include sufficient due process protections, so the bill it was significantly amended in the Senate, resulting in the bill’s postponement (7).

In West Virginia, House Bill 2825, a bill that would have mandated problematic “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the legislative session (8).

A summary of the current status of the campus sexual assault bills introduced in 2018 is available on the SAVE website (9).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Campus

100 Decisions and Counting: Disregard of Due Process in Sex Cases is Costing Colleges Millions

Post author By saveadmin
Post date June 12, 2018

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

100 Decisions and Counting: Disregard of Due Process in Sex Cases is Costing Colleges Millions

WASHINGTON / June 12, 2018 – Last Friday the First Circuit Court of Appeals issued a unanimous due process ruling against Boston College. The judges upheld a student’s claim that the school failed in its “obligation to provide a fundamentally fair disciplinary process to Doe,” who had been accused of sexually assaulting another student (1).

The lawsuit demanded expungement of the proceedings from the accused student’s record and over $3 million in compensatory damages (2). The milestone decision marks the 100^th judicial decision in favor of students accused of sexual assault who later sued their college (3).

In 2011 the Office for Civil Rights issued a new policy on campus sexual assault that removed numerous due process protections for accused students (4). At many colleges, so-called “victim-centered” investigative procedures were instituted and poorly trained investigators began to play a lead role in the adjudication process, creating new liability risks for colleges (5).

Accused students who had been suspended or expelled began to sue. By 2015, the number of lawsuits by accused students surged more than five-fold over the 2011 level (6).

These lawsuits have proven to be costly in terms of legal defense fees and damages. Over a five-year period, total losses approached $9 million at the approximately 1,000 universities insured by the United Educators insurance company. The average loss per claim was $187,000, of which $132,000 was for defense costs, according to a 2017 report (7).

These expenses are likely to increase in the future. On March 9, 2018 a former student filed a $25 million claim against Vanderbilt University, alleging he was denied a meaningful standard of due process and equal protection (8).

The current system was recently described by New York Times columnist Michael Powell as a “broken process” that “flipped fundamental concepts of fairness.” (9) SAVE has developed a model bill titled the Campus Equality, Fairness, and Transparency Act (10).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to sexual assault and domestic violence: www.saveservices.org

Campus Due Process

PR: Effort to Restore Due Process on Campus Gains Traction

Post author By saveadmin
Post date May 14, 2018

Contact: Christopher Perry

Telephone: 301-801-0608

Email: cperry-at-saveservices.org

Sexual Assault: Effort to Restore Due Process on Campus Gains Traction

WASHINGTON / May 14, 2018 – Over the past seven months, leading liberal and conservative voices have worked to restore due process and fairness in campus sexual assault policies. Such initiatives reveal a growing trend being supported by lawmakers on both sides of the aisle.

Last September, Betsy DeVos, Republican Secretary of the U.S. Department of Education, rescinded the 2011 Dear Colleague Letter, a policy that was widely viewed as infringing on fundamental due process rights of accused students (1). The following month, Democrat Jerry Brown, governor of California, vetoed a bill that would have imposed many of the Department of Education’s anti-due process requirements on California universities (2).

Likewise in Massachusetts, the Democratic-controlled House of Representatives declined to take action on H.632, which had been previously passed by the state’s Senate. Critics of H.632 highlighted the flaws of trauma-informed training for investigators and adjudicators, a provision that had been derided as “junk science.” (3)

The pro-due process trend gathered momentum in 2018, as Supreme Court Justice Ruth Bader Ginsberg offered this commentary: “The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. …There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” (4)

In Maryland, lawmakers took up Senate Bill 607, which required disciplinary proceedings to include a description of the rights for students and specified that an institution may not prevent a student from retaining an attorney. The bill recently passed both the Maryland Senate and House with strong bipartisan support (5).

In Colorado, House Bill 18-1391 was approved in the House. But because it failed to include sufficient due process protections, the bill it was significantly amended by Republicans in the Senate, resulting in the bill’s indefinite postponement (6).

In West Virginia, House Bill 2825, a bill that would have mandated worrisome “affirmative consent” polices at the state’s colleges, was not voted upon prior to adjournment of the state legislature (7).

In Mississippi, House Bill 1438, which was devoid of adequate due process protections, died in the Senate Judiciary Committee (8).

The editorial boards of two liberal-leaning newspapers likewise have called on colleges to involve criminal justice officials to investigate felony-level crimes. In January, the Detroit News opined, “Federal, state and campus policy regarding sexual assault should change to treat it as the serious crime it is, and assure that it is probed by experienced, professional investigators independent of the university.” (9) Last month, the St. Louis Post-Dispatch board issued a similar plea: “The pain lives on at universities whenever sex-abuse cases are handled quietly in-house rather than by competent legal authorities.” (10)

A summary of the current status of the state-level sexual assault bills introduced in 2018 is available on the SAVE website (11). In Congress, both Republican and Democratic lawmakers have spoken out on the need for due process and to strengthen the role of the criminal justice system (12).

SAVE urges state and federal lawmakers to recognize the growing trend for impartial and fair proceedings in campus sexual assault cases. SAVE offers a model bill titled the Campus Equality, Fairness, and Transparency Act (13).

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to domestic violence and campus sexual assault: www.saveservices.org

Campus Press Release Sexual Assault

PR: 23 Cornell Law Profs Support Suspended Student in Sexual Assault Appeal

Post author By saveadmin
Post date April 3, 2018

Telephone: 301-801-0608

Email: info@saveservices.org

23 Cornell Law Profs Support Suspended Student in Sexual Assault Appeal

WASHINGTON / April 3, 2018 – Twenty-three Cornell Law School professors have requested to file an Amicus Brief in support of a student who was accused of campus sexual assault and later suspended. The Cornell statement is the fourth statement from law professors calling for the restoration of due process rights on campus.

Two Cornell students had a sexual encounter in August of 2016. The woman filed a complaint, claiming she had consumed too much alcohol to give valid consent. The university panel later recommended that the male student, “John Doe,” be suspended for two years. The student has now appealed the suspension to the Appellate Division of the New York State Supreme Court, which is the intermediary appeals court in that state.

The crux of the appeal is the right of a student to cross-examine his accuser. The male student submitted a series of questions to the university panel to be answered by the woman. But Cornell refused to forward any of the questions, thereby negating the student’s right to cross-examination.

The professors’ Statement of Interest notes, “we have an interest in ensuring that Cornell’s procedures are interpreted properly and applied fairly and faithfully. And, as is explained below, we believe that in this case, a Cornell disciplinary hearing panel failed to comply with an important procedural safeguard clearly set out in Cornell’s Title IX policy – the right of an accused student to have a disciplinary hearing panel conduct inquiry of his accuser about proper topics that he proposed.” (1)

The Cornell professors’ Motion to File Amicus Brief is the fourth public statement by law professors in support of due process in campus sexual assault cases. The other letters were filed by law professors from Harvard Law School (2), University of Pennsylvania (3), and from other universities (4).

In 86 cases, judges have ruled in favor of accused students who have filed lawsuits against their universities (5). SAVE anticipates that professors from other law schools will offer statements in support of campus due process.

Citations:

SAVE — Stop Abusive and Violent Environments — is working for effective and fair solutions to campus sexual assault: www.saveservices.org

Campus Due Process Sexual Assault

PR: Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

Post author By saveadmin
Post date February 7, 2018

Telephone: 301-801-0608

Email: info@saveservices.org

Supreme Court Justice Ginsburg, Joined by Dozens of Federal and State Judges, Calls for Due Process in Campus Sex Proceedings

WASHINGTON / February 20, 2018 – In a recent interview for The Atlantic, Supreme Court Justice Ruth Bader Ginsburg affirmed the need for due process in campus sexual assault proceedings. In addition, Ginsburg clarified that due process protections are not incompatible with aspirations for gender equality.

Asked, “What about due process for the accused?”, Ginsburg gave this reply: “Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.” [emphasis added]

When the interviewer sought clarification whether “some of those criticisms of the college codes valid?”, Ginsburg provided this unequivocal answer: “Do I think they are? Yes.”

Queried about her thoughts how to balance the values of due process against the principle of sex equality, Ginsburg explained, “It’s not one or the other. It’s both. We have a system of justice where people who are accused get due process, so it’s just applying to this field what we have applied generally.”

Ginsburg’s sentiments on this issue have been echoed in recent rulings issued by dozens of federal and state judges.

Since 2012, over 200 lawsuits by students accused of sexual assault have been filed against colleges and universities. The SAVE report, Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases, documents that in a majority of cases, judges have ruled in favor of the accused students (1). To date, 79 of these lawsuits have resulted in decisions by state and federal judges against the defendant university (2).

Justice Ginsburg’s comments were published in the February 15, 2018 edition of The Atlantic (3).

Citations:

SAVE (Stop Abusive and Violent Environments) is working for effective and fair solutions to sexual assault, sexual harassment, and domestic violence: www.saveservices.org

Believe the Victim Campus Sexual Assault

Professors and Legal Experts Call for End to Guilt-Presuming ‘Victim-Centered’ Investigations

Post author By saveadmin
Post date February 7, 2018

Telephone: 301-801-0608

Email: info@saveservices.org

Professors and Legal Experts Call for End to Guilt-Presuming ‘Victim-Centered’ Investigations

WASHINGTON / February 7, 2018 – Today 137 professors and legal experts are releasing an Open Letter that calls on college administrators, lawmakers, criminal justice agencies, and others to promptly end the use of so-called “victim-centered” investigations. Such investigations are fundamentally flawed because they presume the guilt of the accused. The professors come from leading colleges and universities around the country.

The letter traces the source of the “victim-centered” approach to the early 1990s when advocates began to call for “swift and unquestioning judgments about the facts of [sexual] harassment without standard evidentiary procedures with the chant ‘always believe the victim.’”

According to a Human Rights Watch report, a “victim-centered” approach means the investigator assumes “all sexual assault cases are valid unless established otherwise by investigative findings.” The University of Texas School of Social Work’s Blueprint for Campus Police instructs investigators to anticipate legal defense strategies and urges that complainant inconsistencies be covered over by not recording a “detailed account of prior interview statements.” (1)

The Open Letter concludes, “By their very name, their ideology, and the methods they foster, ‘believe the victim’ concepts presume the guilt of an accused. This is the antithesis of the most rudimentary notions of justice. In directing investigators to corroborate allegations, ignore reporting inconsistencies, and undermine defenses, the ‘believe the victim’ movement threatens to subvert constitutionally-rooted due process protections.”

The use of biased victim-centered investigations on campus has given rise to numerous lawsuits by accused students alleging biased collection of evidence (2). In many cases, the judge has issued a ruling in favor of the accused student (3).

Victim-centered practices, sometimes referred to as “Start by Believing,” are becoming widespread in the criminal justice system, as well (4). In 2016 an Arizona governor’s commission issued a letter advising the state’s criminal justice agencies to reject “Start by Believing” investigative methods because their use “creates the possibility of real or perceived confirmation bias.” (5)

More information about “victim-centered” investigations is available (6). The Open Letter can be viewed online (7).

Citations:

SAVE (Stop Abusive and Violent Environments) is working for effective and fair solutions to sexual assault, sexual harassment, and domestic violence: www.saveservices.org

Campus Title IX Victim-Centered Investigations

PR: SAVE Calls for Major Reforms to Campus ‘Victim-Centered’ Investigations

Post author By saveadmin
Post date January 1, 2018

Contact: Nasheia Conway

Telephone: 301-801-0608

Email: nconway@saveservices.org

Following USC ‘motherf—er’ Case, SAVE Calls for Major Reforms to Campus ‘Victim-Centered’ Investigations

WASHINGTON / January 12, 2018 – Superior Court Judge Elizabeth White recently issued a ruling regarding a sexual assault case in which she concluded the university’s investigative procedures lacked fairness and impartiality. Based on this case and similar ones at other universities, Stop Abusive and Violent Environments is now calling on college administrators to end the practice of using guilt-presuming “victim-centered” investigations.

University of Southern California investigator Patrick Noonan submitted an investigative report that omitted more than 150 pages of communications between the parties. The investigator failed to interview the man’s roommate, despite the accused student’s request. Noonan also organized the numerous text messages in non-chronological order, rendering their meaning difficult to decipher.

Following a subsequent teleconference between the university officials and the accused student and his advisor, neither party hung up the line. Thereupon Noonan and the USC Title IX coordinator chatted between themselves, referring to the male student as a “motherfucker” and commenting that the accuser was “so cute and intelligent.”

The expelled student filed a lawsuit against the university. Not surprisingly, the judge concluded the accused student was a victim of a process that was not “fair, thorough, reliabl[y] neutral, and impartial.” http://www.thecollegefix.com/post/40537/

This week SAVE is releasing a new Special Report, “’Believe the Victim:’ The Transformation of Justice.” The report traces the evolution of the “victim-centered” movement over the past decade and documents its incompatibility with recognized investigative methods that are premised on objectivity, neutrality, and fairness. http://www.saveservices.org/wp-content/uploads/SAVE-Believe-the-Victim.pdf

The report concludes, “Victim advocates’ efforts to assure serious consideration and respectful treatment for complainants are commendable. But demanding that investigators and adjudicators reflexively “believe the victim” places a priority on subjective feelings over objective evidence.”

A previous SAVE report documented how victim-centered investigations represent a liability risk for colleges and universities: http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf

SAVE (Stop Abusive and Violent Environments) is working for fair and effective solutions to campus sexual assault: www.saveservices.org

Accusing U. Campus

PR: SAVE Calls for an End to ‘Kangaroo Courts’

Post author By saveadmin
Post date December 4, 2017

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

With Growing Bipartisan Support for Campus Due Process, SAVE Calls for an End to ‘Kangaroo Courts’

WASHINGTON / December 4, 2017 – Stop Abusive and Violent Environments (SAVE) is calling for the restoration of fairness and due process in campus sexual assault cases. SAVE is issuing this appeal in light of the resurgent bipartisan support for fair and equitable treatment of all students.

This recent bipartisan support includes California Governor Brown’s October 15, 2017 veto of a bill that would have codified the denial of key due process rights for accused students, such as the right to cross-examination and a presumption of innocence. In his veto message, Governor Brown highlighted the fact that accused students, “guilty or not, must be treated fairly and with the presumption of innocence until the facts speak otherwise.” (1)

On October 26, the House of Representatives Roundtable on Campus Sexual Assault convened a hearing during which Task Force members argued that fundamental fairness was essential (2):

Rep. Ann McLane Kuster (D-NH): “Too often conversations about these proceedings break down into two camps: those in support for the rights of the accused, and those who support protections for survivors of sexual assault. These are not mutually exclusive.”
Rep. Patrick Meehan (R-PA): We appreciate the “very delicate balance that exists in which all students have an expectation of the right to due process.”

Last week the U.S. House of Representatives introduced the PROSPER Act, a bill to reauthorize the Higher Education Act. The bill would guarantee several fundamental due process rights, including adequate written notice, a meaningful opportunity to admit or contest allegations, access to material evidence, and a prohibition on institutional conflicts of interest (3).

In light of these developments, SAVE urges state lawmakers to consider passage of the Campus Equality, Fairness, and Transparency Act (CEFTA) (4), which contains many due process provisions similar to those in the PROSPER Act.

Presaging the rescission of the Department of Education’s 2011 policy on campus sexual violence, Secretary Betsy DeVos declared on September 7, “Through intimidation and coercion, the failed system has clearly pushed schools to overreach…It’s no wonder so many call these proceedings ‘kangaroo courts.’” (5)

Citations:

SAVE (Stop Abusive and Violent Environments) is working for practical and effective solutions to campus sexual assault: www.saveservices.org

Campus Sexual Assault

PR: To Reduce Lawsuit Risk, Administrators Need to Implement New OCR Sexual Assault Guidelines

Post author By saveadmin
Post date October 11, 2017

Contact: Chris Perry

Telephone: 301-801-0608

Email: cperry@saveservices.org

To Reduce Lawsuit Risk, Administrators Need to Implement New OCR Sexual Assault Guidelines

WASHINGTON / October 11, 2017 – Since the issuance of the federal Dear Colleague Letter in 2011, nearly 200 lawsuits have been filed by accused students alleging lack of due process. (1) Implementation of the Department of Education’s September 2017 Q & A on Campus Sexual Misconduct, which urges colleges to utilize equitable procedures to resolve allegations, are likely to reduce schools’ liability risk. (2)

These provisions from the 2017 Q&A are particularly relevant to lawsuit prevention:

“A school must adopt and publish grievance procedures that provide for ‘equitable’ resolution of complaints of sex discrimination, including sexual misconduct.” (Page 3)
The parties must have “meaningful access to evidence,” and the parties should have the “opportunity to respond” to investigation reports in writing or at a live hearing. (Page 5)
Schools should “avoid conflicts of interest and biases in the adjudicatory process.” (Page 5)

In addition, the new federal guidance notes, “If all parties voluntarily agree… the school may facilitate an informal resolution, including mediation, to assist the parties in reaching a voluntary resolution.” (Page 4). Voluntary resolutions can provide both parties with a satisfactory outcome and no reason to pursue future legal action.

In recent years, Courts have issued strongly worded rulings in favor of accused students. (3) Schools that fail to afford “equitable” procedures are exposing themselves to significant financial risk. In one case, the school paid a $245K settlement for the university’s ‘unfair and biased’ rape investigation. (4)

If schools are transparent with their procedures and offer true procedural safeguards to students, as laid out by the latest OCR guidance, the potential for successful civil lawsuits against the school will be diminished. SAVE recommends that administrators review their campus policies to ensure consistency with OCR’s new guidance, thus protecting all students and limiting their school’s liability.

Additional information can be found in SAVE’s Special Reports titled, “Victim-Centered Investigations: New Liability Risk for Colleges and Universities” (5) and “Lawsuits Against Universities for Alleged Mishandling of Sexual Misconduct Cases.” (6)

(1) https://titleixforall.knack.com/databases#due-process-lawsuits3/due-process-lawsuits/

(2) https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf

(3)https://docs.google.com/spreadsheets/d/1CsFhy86oxh26SgTkTq9GV_BBrv5NAA5z9cv178Fjk3o/edit#gid=0

(4) https://www.washingtonpost.com/news/morning-mix/wp/2016/02/17/montana-quarterback-receives-245k-settlement-for-universitys-unfair-and-biased-rape-investigation/?utm_term=.8eb6ead1d385

(5) http://www.saveservices.org/wp-content/uploads/Victim-Centered-Investigations-and-Liability-Risk.pdf

(6) http://www.saveservices.org/wp-content/uploads/Sexual-Misconduct-Lawsuits-Report2.pdf