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It will pay attorney’s fees as well, once they are assessed

Title IX proceedings sometimes traumatize accused students so much they attempt suicide.

This happened to a male student at Cornell University, who formally accused his sex partner of sexual and physical assault before she filed a Title IX complaint against him.

Cornell judged “James Doe” responsible based on the testimony of his accuser’s non-eyewitnesses; redacted information from Doe’s complaint, without his permission, that contradicted his accuser’s testimony; and refused to investigate his allegations, he claimed in a federal lawsuit.

Though Doe won an appeal of his temporary suspension, another official resurrected the charge with no warning – after he’d been diagnosed with “severe anxiety and major depressive disorder.” He attempted suicide the same day.

MORE: Cornell refused to investigate female student’s alleged rape of frat member

A year and a half later, Cornell and Doe have reached a settlement where the Ivy League university will pay him $125,000 to drop the litigation. This is before attorney’s fees, which have yet to be assessed and which Cornell will pay to Doe’s lawyers once the judge approves them.

Brooklyn College Prof. KC Johnson, who closely tracks Title IX litigation, says the settlement occurred before the presiding judge had handed down any order.

Cornell’s options for responding to the suit were limited from the start because of its federal appeals court, Johnson told The College Fix in an email. It could have filed a motion to dismiss, “but it would have had no chance of prevailing” under the 2nd Circuit’s precedentagainst Columbia University, which involved similar factual allegations.

Syracuse University and Hobart & William Smith College, both in New York, learned this the hard way when their motions to dismiss in similar cases were rejected, Johnson said. The 2nd Circuit precedent is also why Yale has not attempted to dismiss the high-profile lawsuit by its former basketball team captain, Jack Montague.

“Several months of the Cornell case were consumed in mediation, though the case technically was pending throughout,” Johnson said.

Andrew Miltenberg, attorney for Doe, told The Fix he couldn’t immediately explain the action in the case since its filing a year and a half ago.

MORE: Judge says Cornell ‘directly contradicted’ policy by not investigating male claim

MORE: Students tell the feds Cornell is botching sexual-assault investigations

MORE: Cornell refused to investigate male’s rape claim against female

Read Fix coverage of the Doe lawsuit.

Last week, a federal judge in New Mexico allowed a student’s due process lawsuit to proceed against the University of New Mexico and its president, but dismissed his claims against several individual administrators, holding that because the “contours of [the plaintiff’s] due process rights were not clearly established,” the university administrators who punished him were entitled to qualified immunity.

In his opinion, Judge James Browning made some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.

The student-plaintiff, known in the pleadings only as “J. Lee,” alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim. Among other things, the court held that:

• “Lee’s allegations plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”
• “[P]reponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”
• “[The fact] that UNM provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Judge Browning also noted the difference between UNM’s process for students accused of non-sexual misconduct, who get an evidentiary hearing, and its process for students accused of sexual misconduct, who do not. This phenomenon is hardly unique to UNM; a disturbing number of universities offer fewer procedural protections to students accused of sexual misconduct than students accused of non-sexual misconduct. Other schools that provide students with a meaningful hearing in non-sexual misconduct cases, but not in sexual misconduct cases, include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia, and Washington University in St. Louis, to name just a few. (For more information on procedural protections at these and other schools, stay tuned for FIRE’s second annual report on campus due process, coming out later this fall.)

Despite these findings, however, Judge Browning dismissed Lee’s claim against the individual administrators on grounds of qualified immunity. Under the doctrine of qualified immunity, state officials and employees are entitled to immunity from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

This result, while disappointing, is not altogether surprising. Until the recent deluge of lawsuits brought by students accused of sexual misconduct, the law surrounding students’ due process rights in campus proceedings was not very well fleshed-out. Recently, a growing number of courts have begun to clarify the scope of these rights, but Judge Browning clearly felt that the parameters were still insufficiently clear to hold university administrators personally liable. Hopefully, the many additional rulings certain to come in the hundreds of accused-student lawsuits still pending will help increase certainty and clarity. And in the meantime, Lee’s due process claim against the university itself continues on.

Maarten van Swaay

The phrase ‘trauma-informed’ has a worthy provenance;  it has been used for quite some time to describe approaches used to improve communication with children who had suffered from known traumatic events, such as accidents, fire, death of family members, divorce, etc. Such children may withdraw into a shell, possibly to protect themselves from further trauma. Encouraging them to come out of that shell can be very beneficial.

But that is far removed from the current advice to be trauma-informed in the investigation of alleged sexual assault in all the forms for which the term is used today. In that context the aim is not to draw a traumatized person out of her (or his) shell:  the aim is to gain evidence that trauma was indeed inflicted. Thus the phrase ‘trauma-informed investigation’ is fatally flawed:  it insinuates the very infliction that the investigation is supposed to confirm or find false. Not only that, the presumption of (inflicted) trauma implies a victim on whom the trauma was inflicted. Moreover, these insinuations are planted before any investigation is begun – that makes them very resistant, or possibly even immune, to challenge. Finally, and most invidiously, the approach is designed, not to find facts, but to find a perpetrator, and punish him.

A recent article by Ms. Mangan (1)  refers to an event — understandably with a paucity of detail — for which police declined to press charges, for lack of evidence. The article notes that subsequently a panel from Georgia University – ‘trained in the neurobiological effects of trauma’ reached a different conclusion. What that conclusion was, the article does not say, but it notes that ‘the university scheduled a hearing, and the student accused of assault agreed to leave the institution’.  Here the narrative becomes disturbingly vague:  what conclusion did the Georgia panel reach, and why did the ‘accused’ student leave? The article is silent on both questions, but quite effective at suggesting how readers should answer them.

Similarly disturbing questions arise from a reading of an item far removed from the Chronicle.  In 2016, an organization named the Association of Title IX Administrators (ATIXA) published a White Paper under the title “The Seven Deadly Sins of Title IX Investigations” (2).  The writers were careful to place occasional laudable phrases in the text, but those do not hide some seriously biased presumptions:  “If they made what you think was a poor decision, they’re probably already thinking the same thing. That sense of self-blame won’t help you uncover the real facts, and you should try to help them past it. People can make poor choices and still be victimized.” One wonders what those ‘real facts’ are, and how they might be discovered in any ‘he said – she said’ event.  Granted, it may be understandable that administrators charged with dealing with fraught situations will try to make themselves appear capable and indispensable.  But integrity is an unforgiving taskmaster.

Elsewhere in the ‘Seven Deadly Sins’ one can read: “Similarly, a sound investigation must actively gather and accumulate information to tell a story.”  Do the authors advocate writing a story, or compiling a factual report?

In her article, Ms. Mangan refers to two persons she clearly regards as experts, Mr. Jim Hopper, and Ms. Kimberly Lonsway. At first sight, the credentials of Mr. Hopper appear reassuring, if not impressive. Mr. Hopper teaches at Harvard Medical School and presents himself as an expert on psychological trauma who travels the country training campus officials and others in how to conduct trauma-informed investigations.  But the CV maintained by Mr. Hopper (3) reveals some telling aspects. Mr. Hopper earned a PhD. in clinical psychology in 1997, and has held a string of appointments in various teaching institutions, with his current affiliation with Harvard Medical School dating from 2006.  None of these appear to be, or to have been, faculty or tenure-track appointments. Nor do they appear to be focused on research. Then comes a long list of lectures, presentations, and training sessions, the titles of which are curiously monotonous.  Mr. Hopper appears to spend much of his time expounding his views on invitation, but does not reveal much participation in professional meetings that foster evaluation and challenge. Thus it appears that Mr. Hopper gives himself little opportunity to offer his views for analysis and criticism.

Furthermore, the model presented by Mr. Hopper has been carefully scrutinized by Ms. Emily Yoffe (4), and a response by Mr. Hopper to that critique (5) is considerably less persuasive than what Ms. Yoffe writes.

Then what is the model that Mr. Hopper so eagerly advocates?  It rests on claims that traumatic experiences can (and do) release several brain hormones, and that those hormones can have wide-ranging effects, such as garbled and incomplete memories, ‘freezing’, and others.  The release of brain hormones can be experimentally demonstrated, but what they do is still difficult to study.  Moreover, Ms. Yoffe notes that many of the claims made by Mr. Hopper are at odds with other neurobiological observations.  Ultimately, what Mr. Hopper advocates may be summarized by a short statement:  if the ‘victim’ can present a lucid account, that makes that account credible.  If the ‘victim’ cannot present a lucid account, that failure is itself evidence for inflicted trauma.

When Mr. Hopper was asked to respond to the open letter presented by SAVE early in February 2018 (6) he commented that the letter was ‘misleading and unfortunate’.  But he did not find it necessary to explain in what sense the letter was misleading;  one would expect a trauma expert to stand ready to deliver more than ‘unfortunate polarization’ as the grounds for his casual dismissal.

Mr. Hopper does have eager followers. Not only is he invited all over the country by police and academic campuses:  Ms. Lonsway gushes that:  “What’s new is that now, we understand the neurobiology behind it” (7). Ms. Lonsway earned her PhD. (8) with a thesis on the effectiveness of police interrogations; it is not clear how that would give her standing to judge the neurobiology and neuropsychology claimed to support the model of Mr. Hopper.

There are more than a few troubling similarities between the activities of Mr. Hopper and pediatric nurse Susan Kelley, who played a key role in the child abuse drama at Fells Acres some thirty years ago (9).  Ms. Kelly was a major interrogator of the children who had been at the Fells Acres school. As she describes her approach, a child who fails to deliver what the interrogator wants to hear is ‘not yet ready to disclose’.  In other words, only those statements that are acceptable to the interrogator are accepted and admitted into the record.  The Fells Acres affair, and several similar cases, are described in a book by Dorothy Rabinowitz:  No Crueler Tyrannies;  she earned a Pulitzer prize for her reports in the Wall Street Journal on those cases (10).  Among those tyrannies was the imprisonment of Gerald Amirault for 18 years (11), before he  was released.   Almost all the other convictions described by Ms. Rabinowitz were vacated.  Of course none of the children were ever imprisoned, but it is fair to say that most, if not all, of them suffered severe and persistent trauma from the false memories implanted in them.

Ms. Kelley, and others like her, became known as people ‘who could get a conviction’.  Mr. Hopper, and those who are in thrall to him, appear to aim to earn the same dubious reputation, by subverting a benign-sounding phrase into a wiccan-hunt, with little regard for justice or for the Constitution.

Maarten van Swaay retired in 1995 from Kansas State University as Professor Emeritus, after serving for 32 years in the departments of chemistry and computer science.  In the latter department he developed and managed a course in ethics for more than a decade.  He can be reached at vanswaay@ksu.edu.

Citations:

1:  Chronicle of Higher Education, “Trauma Informed” Approaches to Sex Assault Are Catching On. They’re Also Facing a Backlash.

By Katherine Mangan. April 05, 2018.  https://www.chronicle.com/article/Trauma-Informed-/243049

2:  ATIXA:  The 7 Deadly Sins of Title IX Investigations:  2016 White Paper. https://atixa.org/wordpress/wp-content/uploads/2012/01/7-Deadly-Sins_Short_with-Teaser_Reduced-Size.pdf

3:  James W. Hopper, Ph.D.:  Curriculum Vitae. https://www.jimhopper.com/pdf/DrJimHopperCV.pdf

4:  The Atlantic:  The Bad Science Behind Campus Response to Sexual Assault, By Emily Yoffe, September 8, 2017. https://www.theatlantic.com/education/archive/2017/09/the-bad-science-behind-campus-response-to-sexual-assault/539211/

5:  Jim Hopper, Ph.D.,  Sexual Assault and Neuroscience:  Alarmist Claims vs. Facts. Psychology Today, January 22,2018. https://www.psychologytoday.com/us/blog/sexual-assault-and-the-brain/201801/sexual-assault-and-neuroscience-alarmist-claims-vs-facts

6:  SAVE:  Open Letter Regarding Inequitable Victim-Centered Practices,  February 7, 2018. http://www.saveservices.org/wp-content/uploads/Victim-Centered-Practices-Open-Letter-FINAL.docx.pdf

7:  Ms. Lonsway, as quoted by Ms. Mangan: “We’ve always known that victims often have certain problems with their statements. They aren’t chronological. They aren’t linear. What’s new is that now, we understand the neurobiology behind it.”

8:  Kimberly A. Lonsway, Ph.D. Curriculum Vitae. https://kimlonsway.files.wordpress.com/2017/10/lonsway-cv-10-24-17.pdf

9:  Dorothy Rabinowitz:  No Crueler Tyrannies:  Accusation, False Witness, and Other Terrors of Our Times, March 2, 2004, ISBN 978-0-7432-2840-4

10:  Ms. Dorothy Rabinowitz is awarded the Pulitzer for Commentary (2001). http://www.pulitzer.org/prize-winners-by-year/2001

11:  Gerald Amirault record. https://en.wikipedia.org/wiki/Gerald_Amirault