Category: Sexual Harassment

New York: National Champion of Campus Kangaroo Courts

SAVE

November 29, 2021

Over the past decade, over 200 judicial decisions have been handed down against colleges across the country for violations of the rights of students accused of sexual misconduct. According to SAVE’s Analysis of Judicial Decisions,[1] these cases involve a broad range of due process violations:

• Bias Towards Complainant: 34 judicial decisions
• Guilt-Presuming Investigations: 33 decisions
• Inadequate Cross Examination: 31 decisions
• Institutional Sex Bias: 27 decisions
• Lack of Proper Notice: 27 decisions
• Failure to Give Respondent Access to Evidence: 23 decisions
• Flawed Evaluation of Evidence: 20 decisions

Further analysis reveals that the state with the largest number of decisions against institutions of higher education is New York. Since 2013, trial and appellate courts have handed down 31 decisions against 16 New York schools.

The following schools were the losing party – the citations for all decisions are shown at the end of this article:

1. Syracuse University – 6 decisions
2. Columbia University – 3 decisions
3. Cornell University – 3 decisions
4. SUNY Purchase – 3 decisions
5. Colgate University – 2 decisions
6. RPI – 2 decisions
7. Hobart and William Smith – 2 decisions
8. SUNY Stony Brook – 2 decisions
9. Hofstra University – 1 decision
10. Hamilton College – 1 decision
11. New York University – 1 decision
12. Skidmore College – 1 decision
13. John Fisher College – 1 decision
14. SUNY Albany – 1 decision
15. SUNY Cortland – 1 decision
16. United States Merchant Marine Academy – 1 decision

In general, these decisions did not turn on subtle interpretations of nuanced legal precepts. Rather, they were based on a judicial recognition that colleges are failing to observe the most fundamental notions of fairness. In many cases, the bias was so flagrant as to suggest that sex bias was the motivating factor. This represents a violation of the federal Title IX law, which is expressly designed to ban discrimination on the basis of sex.

A Kangaroo Court is defined as “an unofficial court held by a group of people in order to try someone regarded, especially without good evidence, as guilty.” These 31 decisions reveal that New York State now holds the dubious honor of being the national champion of Campus Kangaroo Courts.

The greatest embarrassment falls upon Syracuse University, with a total of six adverse judicial decisions, revealing a broad range of due process failings. The school’s motto, translated from the Latin, states, “Knowledge crowns those who seek her.” By definition, a Kangaroo Court cares more about reaching a “guilty” verdict than engaging in an impartial search for knowledge and truth.

One wonders whether SU administrators appreciate the irony.

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Judicial Decisions Against New York Schools, 2013 – 2021

Name of College	Number of Decisions	Public or Private	Case Citations (in reverse chronological order)
Syracuse University	6	Private	Fraternity of Alpha Chi Rho, Inc. v. Syracuse University, 141 N.Y.S.3d 296 (N.Y. Sup. Ct. Mar. 10, 2021) Doe v. Syracuse University, 457 F. Supp. 3d 178 (N.D.N.Y. Apr. 30, 2020) Doe v. Syracuse University., 440 F. Supp. 3d 158, 168 (N.D.N.Y. Feb. 21, 2020) Doe v. Syracuse University, No. 5:18-CV-377, 2019 WL 2021026 (N.D.N.Y. May 8, 2019) Noakes v. Syracuse University, No. 5:18-cv-00043-TJM-ML (N.D.N.Y. Feb. 26, 2019) Doe v. Syracuse University, 341 F. Supp. 3d 125, 138 (N.D.N.Y. Sep. 16, 2018)
Columbia University	3	Private	Doe v. Columbia University, Case 1:20-cv-06770-GHW (S.D.N.Y. Aug 1, 2021) Feibleman v. Trustees of Columbia University in City of New York, No. 19-CV-4327 (VEC), 2020WL 882429 (S.D.N.Y. Feb. 24, 2020) Doe v. Columbia University, 831 F.3d 46 (2d Cir. July 29, 2016)
Cornell University	3	Private	Matter of Doe v. Cornell University, EF2016-0192. 2017 NY Slip Op 30142(U) (N.Y. Sup. Ct. Jan. 20, 2017) Doe v. Weill Cornell Univ. Med. School, 1:16-CV-03531 (S.D.N.Y. May 20, 2016) Prasad v. Cornell Univ., N.D.N.Y. No. 5:15-CV-322, 2016 WL 3212079 (N.D.N.Y. Feb. 24, 2016)
State University of New York at Purchase	3	Public	Matter of Doe v. Purchase Coll. State Univ. of N.Y., 192 A.D.3d 1100, 1103 (N.Y. App. Div. Mar. 31, 2021) Doherty v. Bice, No. 18-CV-10898 (NSR), 2020 WL 5548790 (S.D.N.Y. Sept. 16, 2020) Bursch v. Purchase Coll. of State Univ. of New York, 125 N.E.3d 830 (N.Y. June 6, 2019)
Colgate University	2	Private	Doe v. Colgate Univ., 457 F. Supp. 3d 164 (N.D.N.Y. Apr. 30, 2020) Faiaz v. Colgate Univ., 64 F. Supp 3d 336, 341 (N.D.N.Y. Nov. 24, 2014)
Rensselaer Polytechnic Institute	2	Private	Doe v. Rensselaer Polytechnic Inst., No. 1:20-CV-1185, 2020 WL 6118492 (N.D.N.Y. Oct. 16, 2020) In the Matter of John Doe v. Rensselaer Polytechnic Institute, No. 254952 (N.Y. Sup. Ct. Nov. 6, 2017)
Hobart & William Smith Colleges	2	Private	Doe v. Hobart and William Smith Colleges, 6:20-cv-06338 EAW (W.D.N.Y. June 23, 2021) Rolph v. Hobart & William Smith Colleges, 271 F. Supp. 3d 386, 401-02 (W.D.N.Y. Sep. 20, 2017)
State University of New York at Stony Brook	2	Public	Doe v. Haas, 427 F. Supp. 3d 336 (E.D.N.Y. Dec. 9, 2019) Velez-Santiago v. State University of New York at Stony Brook, 170 A.D.3d 1182, 1183 (N.Y. App. Div. Mar. 27, 2019)
Hofstra University	1	Private	Matter of Hall v. Hofstra University, 101 N.Y.S.3d 699 (N.Y. Sup. Ct. Apr. 3, 2018)
Hamilton College	1	Private	Matter of A.E. v. Hamilton College, 173 A.D.3d 1753 (N.Y. Ct, App. June 14, 2019)
New York University	1	Private	Doe v. New York University, No. 1:20-cv-01343-GHW, 2021 U.S. Dist. LEXIS 62985 (S.D.N.Y. Mar. 31, 2021)
Skidmore College	1	Private	Doe v. Skidmore College, 59 N.Y.S.3d 509 (N.Y. App. Div. July 13, 2017)
St. John Fisher College	1	Private	Bisimwa v. St. John Fisher College, et al., E2019005959 (N.Y. Sup. Ct. Nov. 20, 2019)
State University of New York at Albany	1	Public	Alexander M. v. Cleary (SUNY-Albany), 188 A.D.3d 1471, 1476 (N.Y. App. Div. Nov. 25, 2020)
State University of New York at Cortland	1	Public	Boyd v. State Univ. of New York at Cortland, 973 N.Y.S.2d 413, 415-6 (N.Y. App. Div. Oct. 17, 2013)
United States Merchant Marine Academy	1	Service Academy	Culiver v. U.S., No. 2:17-cv-03514-JS-SIL, Document 48 (E.D.N.Y. July 6, 2017)

Citation:

[1] https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

‘Take Responsibility Act’ Would Upend Long-Standing Supreme Court Decisions, Dramatically Increasing University Liability Risk

WASHINGTON / October 11, 2021 – Rep. Debbie Dingell (D-MI) recently introduced H.R. 5396 (1), a bill that would substantially increase universities’ risk of being targeted in Title IX lawsuits. The bill would remove the “actual notice” standard for Title IX claims, and provide a private right of action for alleged violations of Title IX regulations. These two changes would revolutionize how Title IX cases are handled on college campuses.

First, Section 3(a) of H.R. 5396 would abolish the “actual notice” standard for deliberate indifference of Title IX claims. “Deliberate indifference” claims are those filed against schools by persons who claim they are victims of sexual harassment or sexual assault where the university failed to act in response to the allegation.

Currently, such claims are governed by the standard set forth by the Supreme Court in Gebser v. Lago Vista Independent School District (2), and Davis Next Friend LaShonda D. v. Monroe City Board of Education (3). These cases established the same standard for faculty-on-student and student-on-student claims, respectively. For a plaintiff to succeed, he or she must show that the school had “actual notice” of the harassment, meaning that “an official who at a minimum has authority to address the alleged discrimination… has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” (4). In addition, the plaintiff must prove that the harassment was “so severe, pervasive, and objectively offensive that it… deprive[d] the victim of access to the educational opportunities.” (5).

Rep. Dingell’s bill would overrule these Supreme Court cases and establish a much lower standard. Under H.R. 5396, Title IX plaintiffs could use a negligence standard, which would allow them to prevail if they could merely show that the school “should have known” about the harassment. This bucks the Supreme Court’s reasoning that such a standard would unfairly punish schools for actions of third parties of which the school was unaware (6). Were this bill to become law, schools could expect a flood of litigation from alleged victims who may not have even filed complaints at their respective schools, because the school need not know about the harassment to be liable.

Second, the changes wrought by the bill’s Section 3(b) would be even more profound. This section would provide a private right of action to all Title IX plaintiffs (not just victim-plaintiffs) for violations of federal Title IX regulations.  As it stands now, victims of campus sex discrimination are required to prove discrimination in court, under the appropriate Title IX theories. Under H.R. 5396, a student could prevail if he or she shows discrimination, or that Title IX regulations were violated.

For example, the current Title IX regulations require “notice of the allegations of sexual harassment potentially constituting sexual harassment.” (7) Under the current Title IX regime, a plaintiff cannot sue if a school fails to provide adequate notice (unless he argues that the failure was motivated by sex-bias); rather, he will have to file a complaint with the Office for Civil Rights and hope that the Executive Branch enforces its regulations. Under the Dingell bill, by contrast, the plaintiff could simply show the school failed to provide adequate notice, and that failure in itself would be sufficient to show a violation of Title IX.

The effects would be immense. Whereas currently OCR could decline to pursue claims it received, under this bill every student effectively would become a citizen enforcement agency empowered to enforce federal regulations.

If this bill were to become law, schools could be held liable for harassment they did not know occurred, and for any failure to strictly abide by federal regulations. It is unclear whether sexual harassment accusers or respondents would be more likely to take advantage of these changes. But there is little doubt that if enacted into law, H.R. 5396 would provide an array of opportunities for students searching for creative strategies to cover their higher education expenses.

Citations:

1. https://www.congress.gov/bill/117th-congress/house-bill/5396?q=%7B%22search%22%3A%5B%22H.R.+5396%22%2C%22H.R.%22%2C%225396%22%5D%7D&s=1&r=2
2. 524 U.S. 274 (1998).
3. 526 U.S. 629 (1999).
4. Gebser, 524 U.S. at 290.
5. Davis, 526 U.S. at 650.
6. Davis, 526 U.S. at 642.
7. Section 106.45(b)(2)(i)(B).

Know Your IX: ‘I’m angry, I’m disappointed’ October 6, 2021 This morning was not what I expected. Our team had a meeting scheduled at the Department of Education with Acting Assistant Secretary Suzanne Goldberg and Deputy Secretary Cindy Marten. We were coming with more than 55,000 signatures on a petition demanding the Department of Education take action to protect survivors. I’m not naive. I knew they were resistant. But we came to the table hopeful that we could meet a compromise. Instead, the Biden Administration outright refused to respond to our reasonable demands and turned their backs on student survivors. Currently, the Biden Administration plans to wait until May 2022 to propose a new Trump-DeVos Title IX rule to help survivors. But that’s way too late. If they follow the same timeline as the last Administration, we wouldn’t get a new more effective Title IX rule until February 2024. We told them student survivors cannot wait any longer for the department to restore our civil rights. They must act now. And what was their response? They asked us for ideas on how to prevent sexual assault on campuses. Yes, really. As if we hadn’t just presented our ideas in the form of a petition with more than 55,000 supporters! How do you prevent sexual assault?? A new Title IX rule issued this year, not May 2022, that’s how! Then we took a deep breath, and decided to share some stories of students who survived sexual assault. It was heart-wrenching and difficult. But we ended by again reiterating what would have helped these students –– a Title IX rule that supports the rights and safety of all. But the Department, again, shirked off our demands. I’m sick and tired of people in power asking survivors to share their trauma only to ignore their demands and turn their back on them. I’m angry, I’m disappointed, but I’m ready to keep fighting. We organized a national movement that pushed the Obama administration to take survivors’ safety and access to education seriously––and we will do it again. But we need your help––here’s how: If you’re a student or recent alumni, sign up here to join a national coalition of students demanding #EDActNow. Today was just the first step, but we’re not done yet. If you’re not a current student or recent alumni, donate to ensure we can expand our national movement to organize for the rights of survivors. No amount is too small! Add your voice to this fight and check out the #EDActNow digital engagement toolkit for ways you can spread the word online or in your own community. This is just the first week of October, there is still time for the Department of Education to come to their senses and meet some of our demands. But from what we’ve seen today, it’s going to take a lot of pressure to get them there. In Solidarity, Sage Carson Manager, Know Your IX Source: Know Your IX group message titled, “We met with the Dept. of Education, they turned their backs on us.”

PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

TNG Commentary Illogically Dismisses Cross-Examination, Placing Universities at Liability Risk

WASHINGTON / August 24, 2021 – A recent commentary by the TNG Consulting group over-reaches in its analysis of the recent Victim Rights Law Center v. Cardona decision, dismisses the key role of cross-examination, and invites a new wave of litigation against schools that have faced a tide of Title IX lawsuits in recent years.

In the original lawsuit, the Victim Rights Law Center (VRLC) challenged the Title IX regulation’s various cross-examination provisions (1).  The provisions, found at 106.45(b)(6)(i), state in part, “Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice…”

In his July 28 opinion (2), District Court Judge William Young approvingly noted that the Department of Education:

• “detailed its reason for adopting the live hearing procedures, including the cross-examination requirement” (Page 16)
• “explained its balance between cross-examination as a ‘necessary part of a fair, truth-seeking grievance process’ with safeguards to minimize the potential for ‘traumatic effects on the complainants’” (Page 16); and
• “stressed the importance of cross-examination to determine the credibility of evidence.” (Page 17)

Judge Young was concerned, however, by this sentence:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

In his decision, Judge Young vacated the above-quoted sentence, and affirmed the remainder of the cross-examination provisions, concluding that “The Advocates’ argument contesting 106.45(b)(6)(i) also fails.” (Page 54)

Hence, the decision did not invalidate the general cross-examination mandates in the 2020 regulations. Rather, it spoke to the narrow issue of how universities can handle pre-hearing statements by individuals that do not subject themselves to cross-examination.

Unfortunately, the August 16 TNG commentary omits key parts of Judge Young’s analysis. Instead, TNG recommends:

“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. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” (3) [emphasis added]

Relying on the same reasoning, a recent article from the National Women’s Law Center advises, “Effectively, what this means is that parties and witnesses in postsecondary schools should now no longer need to answer cross-examination questions from the opposing party’s advisor in order for the school to consider their other statements in its investigation.” (4) [emphasis added]

NWLC’s Shiwali Patel likewise tweeted on August 23, “THIS IS BIG. Effectively, this means that complainants shouldn’t have to participate in direct, live, cross-examination by the respondent’s advisor – at least under Title IX.” (5)

To date, nine appellate court decisions and 22 trial courts have upheld the role of cross-examination (6). In Doe v. Westmont College, the appellate judge 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.” (7)

The TNG commentary incorrectly suggests that the VRLC decision contemplates universities allowing parties in Title IX disciplinary proceedings to “refuse to answer all cross-examination questions” posed by opposing parties. As a result, universities may find themselves subject to lawsuits if they follow the TNG advice.

Citations:

1. https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2020/06/20-11104-Complaint.pdf
2. https://storage.courtlistener.com/recap/gov.uscourts.mad.222276/gov.uscourts.mad.222276.183.0.pdf
3. https://www.jdsupra.com/legalnews/implementing-the-cardona-decision-for-1783273/
4. https://nwlc.org/resources/federal-judge-vacates-part-of-trump-administrations-title-ix-sexual-harassment/
5. https://twitter.com/shiwali_patel/status/1429890279834796041
6. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
7. 2d Civil No. B287799, at *21 (Cal. Ct. App. 2019)