Category: Uncategorized

Why Pennsylvania Attorney General Josh Shapiro decided it was his place to get into the mix is unclear. Maybe it was just too easy to hop on the Woke Train and get a free ride. Maybe he didn’t want to be left out of the “coalition” of states’ attorney generals who couldn’t manage to clean up the mismanagement (like the thousands of rape kits that go untested for years) of the handling of sex offenses in their states’ criminal courts, and found it easier to grab at low-hanging fruit.

Attorney General Josh Shapiro, together with the Attorneys General of New Jersey and California, yesterday led a multistate coalition of 19 Attorneys General in submitting a formal, legal comment letter to Secretary Betsy DeVos and the U.S. Department of Education calling on federal officials to withdraw a proposed rule that would undermine the anti-discrimination protections of Title IX of the Education Amendments Act of 1972, and weaken protections against sexual harassment and violence for students.  The proposed rule would impose new requirements on schools and students that would be a significant departure from the fundamental purpose of Title IX and the Education Department’s longstanding Title IX guidance, and leave campuses less safe.

That the new rules would be a “significant departure” was pretty much the point. The irony of “longstanding” meaning starting in 2011 when they were invented out of whole cloth by a bureaucrat eludes Shapiro. That inclusion of some basic due process “leaves campuses less safe,” however, isn’t merely the repetition of the vapid slogan of sad advocates, but a threat by attorneys general.

The “coalition” submitted a lengthy comment of 71 pages, which suggests they have a bit of extra time on their hands having managed to fix all their state issues so that they can now focus on federal rules. But the thrust of their arguments coming from AGs isn’t merely childish, but disconcerting. They are arguing against the value of due process, fundamental fairness for the accused male student. But slipped in there is an argument rarely seen, and never by an attorney general. There should be no presumption of innocence.

B. The Presumption of Non-Responsibility Improperly Tilts the Process in
Favor of the Respondent.

The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. §§ 106.45(b)(1)(iv) & (b)(2)(i)(B). The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation. Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation. The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard (which we contend is not appropriate). The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment.

Accordingly, there should be no presumption regarding the respondent’s responsibility.

In the scheme of sophistry, this is pretty big. The presumption of innocence, or “non-responsbility” as it’s euphemistically called here, is little more than the flip-side of the burden of proof. If the burden isn’t met, then who wins? But there is an additional prong, that the “winner” isn’t ascribed the title of “rapist” who beat the rap, even though that’s pretty much the way it goes anyway.

The presumption has long been reduced to a legalism in the mind of the public, that the cops wouldn’t arrest someone if he wasn’t guilty. That prosecutors wouldn’t prosecute someone who wasn’t guilty. To many, the burden is on the perp to prove his innocence, or he’s guilty but got lucky. The concept of it being a bit problematic to prove a negative isn’t one that people tend to spend much time thinking about. Why bother when everybody knows the guy is guilty?

But the argument proffered by the attorneys general is shockingly weak:

The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate.

This is a non-sequitur. The argument, which no one makes but certainly should, that the criminal law presumption should apply, as this is no “grievance procedure” but a subconstitutional criminal prosecution that has consequences more severe than the vast majority of crimes, compels the presumption to apply. That it’s not, at least as argued by the AGs, a criminal case has no rational bearing on whether the presumption should apply.

The question, at best, would then turn to whether the purposes for the presumption apply to these proceedings as they do to criminal cases. They can’t be bothered to make a cogent argument, but then the sad advocates to whom their comment is really addressed won’t complain about their failure of logic.

But the fact that this comes from attorneys general, whose responsibility bears some relation to constitutional rights as well as the jurisprudence upon which they exist, raises a secondary, more nefarious problem. They are arguing throughout their letter, often disingenuously such as when they ignore the caselaw requiring hearings and some means of confrontation when facts are in dispute, against the basic premises of due process.

The AGs are arguing that due process is an evil that should be eliminated on campus because it makes woman “unsafe.” Even worse, they are arguing that an accused male student shouldn’t be presumed innocent of rape before the burden of proof, whatever that might be, is sustained. The ploy, that someone can be accused of rape but “considered neutrally” is absurd, and they, as lawyers, certainly know this.

Just as due process has been vilified in this process to assure the men lose, the presumption of innocence is now the target of the AGs’ rhetoric. Having already reduced due process to the enemy of women with astounding success, is the presumption of innocence now in their crosshairs? It’s not just the impact on the woke psyche on campus, but as legal concepts are undermined in the mind of the public, it filters through the system. Won’t that be convenient for the AGs?

Does DeVos see ‘every hearing as a Perry Mason episode’?

Multiple appeals courts at both the state and federal level have explained the importance and necessity of cross-examination in campus sexual-misconduct proceedings.

They often invoke a quote by the famed American jurist Henry Wigmore, cited in a 1972 Supreme Court ruling, that cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.”

A high-profile Title IX consulting firm doesn’t agree, at least when cross-examination is used in its field.

In its latest “tip of the week,” the National Center for Higher Education Risk Management mocks Education Secretary “Betsy DeVos and her supporters” for supposedly arguing that cross-examination is “the panacea” for the problems in Title IX proceedings.

The Department of Education’s proposed Title IX regulation, which is open to public comment for another two weeks, would require these proceedings to allow cross-examination and exclude the testimony of any party or witness that refuses to undergo cross-examination.

The core problem in these proceedings “is actually rooted in bias and lack of training,” NCHERM’s unsigned six-page letter reads:

[The Education Department] believes – incorrectly – that producing more and better evidence in hearings will overcome the biased and deficient analysis that is plaguing those proceedings. Phooey. The solution isn’t about evidence. More evidence will not overcome bias, because bias inherently causes decision-makers to ignore and overlook evidence. Believing otherwise is wishful thinking. Producing more and better evidence (the purported goal and purpose of cross-examination) simply provides those who are biased more to ignore and overlook.

The Title IX field is riddled with “implicit bias” and those who make decisions in proceedings often possess “deficient analytical skills,” which requires “more and better training,” the group argued. When bias and deficient analysis intersect, “that multiplies the problem into confirmation bias,
which is much more difficult to unravel.”

In a paragraph that shows the group’s underlying disdain for advocates of due process, NCHERM alludes to the “greatest legal engine” quote:

Perhaps [DeVos and her supporters] see every hearing as a Perry Mason episode, replete with an opportunity to break the witness and make them confess the truth? This kind of superstition results from watching too many TV courtroom dramas and not enough real time in actual courtrooms or educational administrative hearings.

The conceit of humans believing they are lie detectors undergirds the belief that crossexamination is the optimal way to discern truth or credibility. There is no data to support the validity of that belief.

MORE: Title IX bureaucrat group charges $1,499 to teach you due process

The “tip” goes on to suggest talking points for readers when they submit comments on the notice of proposed rulemaking, including the “high risk of traumatizing the parties” through “adversarial” elements.

It asks what will happen when parents can actively represent their children in proceedings, rather than sit silently as hearing panelists and campus prosecutors grill the parties:

I have seen Mom in this process. Many times. Mom is not genteel. Mom is not trained. Mom is a momma bear doing anything she needs to protect her cub. Maybe a student needs such a zealous advocate, but when the claws come out, civility is forgotten. The same can be true for Dad; he has claws, too.

The tip also suggests that colleges will have trouble recruiting faculty and staff to serve as hearings officers and chairs when those people will be “doing battle with skilled attorneys on how a question should be phrased, whether it should be posed, and whether it was sufficiently answered.”

But it returns at the conclusion to emphasize that “this entire cross-examination blueprint could significantly chill victims from ever deciding to report sex discrimination and seek formal redress” – and “that seems to be” the intention of the department’s Office for Civil Rights.

Read the tip of the week, which was shared by the due-process group Stop Abusive and Violent Environments as a “good laugh.”

Judges question ‘practical efficacy’ of fair hearing when single official does everythingThe era of serious punishments based on a single official’s investigation is over at the University of Southern California.

For the second time in less than a month, a California appeals court ruled that the private university denied a student accused of rape a fair hearing, and that the same Title IX official conducted a shoddy investigation.

The three-judge panel ordered a lower court to remove USC’s findings against “John Doe” from his record, and awarded him his costs on appeal. The university will also have to create procedures to allow accused students to cross-examine both their accusers and witnesses in some form.

This went even further than the previous appeals panel in the December ruling against USC, which explicitly declined to rule whether accused students have a right to cross-examine anyone beyond accusers.

“When credibility of witnesses is essential to a finding of sexual misconduct, the stakes at issue in the adjudication are high, the interests are significant, and the accused’s opportunity to confront adverse witnesses in the face of competing narratives is key,” said the opinion, written by Justice Thomas Willhite.

Challenging the December appeals panel even further, Willhite questioned whether the right to a fair hearing has “any practical efficacy” when a single official acts in the “overlapping and conflicting capacities” of prosecutor and tribunal.

“Under such circumstances, the performance of this key function is simply too important to entrust to the Title IX investigator in USC’s procedure,” Willhite wrote. His opinion was joined by Justice Audrey Collins and Orange County Superior Court Judge Kim Garlin Dunning, sitting by designation.

“The decision against USC appears to be consistent with the new Title IX guidelines” proposed by the Department of Education last fall, which are open to public comment through January, Doe’s lawyer Mark Hathaway wrote in an email.

‘The courts are making substantive changes,’ but USC did everything right

Both rulings fault the choices made by Title IX investigator Kegan Allee, particularly her failure to interview relevant witnesses and pursue exculpatory evidence.

USC staff identified in the past year’s rulings against the university appear to have not been sanctioned for their failures as documented by judges.

Allee is now listed as assistant director of the Title IX office. Two officials caught calling an accused student “motherfucker” – Gretchen Dahlinger Means and Patrick Noonan – still have their titles.

USC declined to answer College Fix questions about how it’s specifically changing procedures in response to the rulings, and on what timeline; when it promoted Allee (in video below), whether she’s still handling investigations, and how the rulings may affect her employment and personnel file; and whether Means and Noonan have experienced sanctions.

MORE: Huge judgment against USC after calling accused student ‘motherfucker’

A spokesperson provided a statement Saturday that says the investigation at issue in Friday’s ruling, which started in fall 2014, “was conducted in compliance with its student conduct policies and with state and federal laws in place at the time of the investigation.”

USC emphasized that “no case in California required a private university to conduct a live hearing” when the lawsuit was brought, “or to permit the responding student to confront and cross examine either the complainant or witnesses”:

The courts are making substantive changes to the requirements for Title IX investigations. USC will keep abreast of these evolving judicial interpretations and requirements, and most importantly, remains committed to preventing all forms of misconduct on our campuses, to providing outstanding care to all students, and to ensuring we have policies and procedures that prioritize respect for our students and our entire university community.

Removal of sex-offender designation will help him ‘to some degree’

Though the accused student is identified pseudonymously in Friday’s ruling, he has been previously identified as former USC football player Bryce Dixon.

USC tried to head off Dixon’s lawsuit from the start, arguing he wasn’t eligible to return to USC. It expelled him in 2015 for “nonconsensual sex acts” with the accuser, “Jane Roe,” but the following year Dixon was sentenced to six years in prison for a string of violent robberies, according to the Los Angeles Times.

The university expelled him again after his conviction for “independent violations” of the student conduct code. It maintains that the lawsuit is moot because of this second unrelated expulsion.

Neither the trial judge nor appellate judges bought the university’s argument. USC has branded Dixon a sex offender, which will have “an immediate and lasting impact” on his life, from personal relationships to educational and employment opportunities, Friday’s ruling said.

Removing his sexual-misconduct expulsion from his record would make it easier for Dixon to transfer and restore his reputation “at least to some degree” for the public, it said.

A history of hooking up with football players – and being reprimanded

As with December’s ruling against USC, this Title IX proceeding involved alleged bruises on the accuser but no physical evidence.

Dixon was a freshman on a football scholarship when he had sex with Roe, a senior and student athletic trainer, just after midnight on Oct. 24, 2014.

Trainers had been warned not to “hook up” with athletes or they would lose their jobs. But according to Roe’s roommate of three years, “E.C.,” she had a history of sleeping with football players and had been “reprimanded for unprofessional conduct” before her encounter with Dixon.

The opinion notes that much of Allee’s interview with the roommate, including Roe’s relevant sexual history, was redacted in Allee’s notes. The investigator did not record interviews and only provided summaries of her raw notes in her report.

The Student Behavior Appeals Panel also refused to give the roommate’s redacted interview to Dixon, including an alleged “group text” warning to trainers, claiming it was irrelevant.

MORE: Appeals court blasts USC for indifference to exculpatory evidence

Roe texted Dixon around 11:30 p.m. Oct. 23. She later told Allee that she was going to his place to smoke marijuana with him after getting “tipsy.” She said he forcefully groped her as they walked to a taco stand together, yet Roe agreed to return with him to his apartment, believing they would only smoke together, not have sex.

E.C. and Roe’s other roommates had “teased” her about the likelihood she would “hook up” with Dixon before she went over. To convince them she wouldn’t, Roe texted one of them continually while she was with Dixon. “None of Roe’s texts expressed discomfort about the way Doe touched her,” the judges note.

Dixon denied in his interview that Roe smoked any marijuana with him. His intentions for that night were clear, as revealed by a series of “flirtatious texts” that Allee left out of her report, the judges note. Dixon told Roe she “should wear nothing” and “come over naked” to his place, and she responded “Hahaha no I’m not going over to your place naked” and she couldn’t “guarantee anything.”

While claiming she couldn’t remember several details of the night, Roe told Allee that Dixon made her touch his penis, roughly grabbed her breast and then had rough sex with her while she protested. He put his hand over her mouth at one point. Roe said she was “repulsed” by how quickly Dixon moved to sexual intercourse and claimed he didn’t use a condom.