Friday, August 16, 2013

An Update from St. Joe's

Over at Minding the Campus, I’ve analyzed two federal lawsuits filed by male students found culpable of sexual assault after college procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due process. Today is the deadline for the defendants in the first suit, filed by Brian Harris against St. Joe’s and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket, filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You can read the filing here; I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)

Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 “Dear Colleague” letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe’s policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St. Joe’s has structured a procedure in which“[c]ivil or criminal rules of procedure and evidence do not apply,” while allowing the school to consider hearsay.

But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.

Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings.” In other words: the St. Joe’s disciplinary tribunal should be viewed as “quasi-judicial,” even though it denies accused students the right to counsel, doesn’t guarantee them the right to cross-examine their accuser, doesn’t follow civil or criminal rules or procedure, and allows hearsay.

Rucket argues that Harris has no legal claim to challenge the judgments made by St. Joe’s, no matter how unfair the university’s procedures. “Harris is attempting improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why? In part, because “there is a presumption of fairness in administrative proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect an assertion in the St. Joe’s handbook that “[s]ubsequent reviewers shall not determine anew whether there was a Community Standards violation.” How convenient as a way to shield any university from challenges to potentially unconstitutional behavior.

This line of argument, if upheld by the court, would render beyond judicial review the assault on due process for all college students accused of sexual assault, and Rucket asserts as much. At least with regard to students at private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that decision.” The power this line of interpretation gives to college disciplinary processes is extraordinary: once a private college brands a student a rapist, no matter how unfair the process the college utilizes, the student can never challenge the finding, as long as the college followed whatever unfair procedures it utilizes in sexual assault cases.

Absurdly, Rucket claims that the power he gives to the St. Joe’s process to avoid court challenge is equal opportunity: If, he notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she had then filed a “lawsuit against Harris and SJU, Harris certainly would be making this exact same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this claim will certainly come as news to the anti-due process “activists” glowingly profiled in the New York Times and Inside Higher Ed’s Allie Grasgreen, who have urged federal intervention to effectively relitigate a variety of campus decisions they opposed. Second: as Rucket well knows, even if Harris had been cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris then could have been tried and, if convicted, sued.

In any event, the filing notes, even without the specific wording in the St. Joe’s handbook, Harris would have no case. Before choosing to attend St. Joe’s, Harris knew (or should have known) the university’s procedures for handling sexual assaults. Courts, Rucket suggests, can’t now intervene. (Oddly, the only two cases that Rucket cites to bolster his point come from Pennsylvania state courts; he doesn’t explain why these decisions should be treated as precedential in a federal lawsuit.) If Harris didn’t want to subject himself to the anti-due process approach used in his case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear Colleague” letter applies to virtually every university in the country, under Rucket’s viewpoint, the only realistic choice for a male student who wants to ensure that he has due process if accused of sexual assault would be not to attend college at all.

Finally, Rucket challenges Harris’ claim that he lacked an opportunity to cross-examine Horst, but, in any case, deems the matter irrelevant—in part because St. Joe’s doesn’t promise such a right and in part because the “Dear Colleague” letter “strongly” discourages granting such a right. To the best of my knowledge, this is the first time perhaps the most objectionable aspect of the “Dear Colleague” letter—its urging schools to set up procedures that deny an accused student the right to confront his accuser—has been cited, positively, in a legal filing.

Beyond legal arguments, the filing also provides Horst’s version of the evening in question, in which she alleges that she was assaulted while incapacitated. Rucket’s writings, however, corroborate several points from Harris’ filing, chiefly that:
  • Horst asked Harris to come to her dorm room and spend the night;
  • After the alleged assault (which Harris maintains was consensual intercourse), Horst left her room to go to the bathroom, but then returned to her room voluntarily, where she and Harris then spent the night;
  • Horst did not seek a medical examination after the incident;
  • Horst did not report the incident to police.
The filing describes Horst as “obviously intoxicated” on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.

Rucket does challenge the version of events presented in Harris’ complaint in one significant way. While he concedes that Horst invited Harris to come to her room for “cuddling” and to spend the night, according to the filing, this invitation had no sexual connotation.

Two final notes: (1) This is not the lacrosse case, in which overwhelming and unimpeachable evidence of actual innocence existed. Instead, the Harris case is an excellent demonstration of how due process-unfriendly college procedures—coupled with the newly-mandated preponderance-of-evidence (50.01%) standard—all but ensure that college structures can’t discover the truth in close or even somewhat close cases. And in a campus environment that’s overwhelmingly favorable ideologically to accusers, this is a dangerous thing.

(2) In his brief, Rucket asserts that Harris “was found guilty of (1) sexual assault.” [emphasis in original] Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so. But in the real world, that’s a distinction that’s easily elided, since the stigma of being branded a rapist comes just as easily from a college process as from a jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the result of the St. Joe’s disciplinary process with that of a criminal trial illustrates why universities, when they consider issues that also qualify as criminal matters, need to provide due process to accused students. And if federal courts are the only mechanism for forcing universities to do so, then so be it.


A Duke Dad said...

Clearly, university administrators have way too much time on their hands. .... And use that time to heap grief on any and all that they get their clutches on.

"Idle hands are the devil's workshop"

If each academic institution were to fire 90% of their non-teaching/research staff, not only would tuition rates plummet, but confrontation, political correctness and outright tyranny would markedly diminish.

Anonymous said...

So why is this so clear that duke administrators are abusing people for a duke dad to make that comment?

The observation by some that they are actually evil - and have actualized the evil devil in their practices in treating any and all as they wish contrary to US constitution and law - is noticed by some probably many who view the perspective from what they do to others (including children and students) that causes serious harm while believing most laugh and play along with their evil ways.

Anonymous said...

Does Rucket approve questioning the accused under torture? Nothing in his argument would seem to rule that out or make subsequent "confessions" inadmissible.

Kevin M-R

Anonymous said...


male Masturbator said...

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Anonymous said...

In the Duke case it was decided that the student handbook didn't form any form of a contract. in this case aren't hey arguing that it does and that by agreeing to it one gives up rights?

Jim In San Diego said...

re: anonymous @ 12:17

I cant find the "like" button on here, but your comment is astute.

Every citizen of this country walks around with a bundle of rights, which were given to him by virtue of his citizenship in this land.

These rights have been described elsewhere as "inalienable". That is, they cannot be taken from you, and you cannot give them up, no matter what any college handbook says.

What standing in a Federal court would a college handbook have if it advised incoming students that class assignments,dorm selection, and use of the gym would be based on the students race or religion, and some star chamber committee would make unappealable decisions?

This appears to be what we now face, however, with regard to student rights under a claim of rape on campus.

Jim Peterson

Anonymous said...

Being a dumb old southern woman, maybe I just don't get it, folks. Since when is a charge of rape supposed to be handled in a kangaroo court in a university? Aren't people who are accused of rape supposed to be arrested, charged, indicted, tried, a court of LAW? I don't get it.....

Anonymous said...

The self-styled "dumb old southern woman" turns out to be a helluva lot more intelligent, perceptive and just than a bunch of intellecual, progressive academics and bureaucrats :-)

Kevin M-R

Anonymous said...

Add ex-Xavier athlete Dez Wells to the list of students expelled for rape and filing lawsuits.

Stuart McGeady said...

An update on developments at Oberlin College, from Michelle Malkin and Human Events...

Anonymous said...

St. Joseph's University is a private institution and claims the disciplinary hearing was purely a contractual matter between private parties. Therefore, do the absolute privilege protections against defamation afforded in Schanne v. Addis (E.D. Pa. 2012) apply, given the requirement for both government involvement and due process outlined in Overall v. University of Pennsylvania (2005)?

Schanne v. Addis (2012) -

Overall v. University of Pennsylvania (2005) -

Anonymous said...

Notwithstanding my post above, a few definitions of "cuddle" from the Urban Dictionary:

1. Cuddle

MEN Love to cuddle with their girlfriends when their friends aren't around. They love to snuggle with their girlfriend and hold them close.

will you cuddle with me please

5. Cuddle

When two people, usually partners hold close to each other, usually while lay down; It is a way of showing affection for one another.

Usually a result of simple bordem, romance, or as a way of consoling sadness.

1) They cuddled up on his bed after a romantic night out
2) He cuddled her in the rain as she was crying

6. Cuddle
Code word that guys use when their intention is sex and they don't want the other party to know.

"I love to cuddle, I can't wait to cuddle with you"
"Can I come over and cuddle?"
"I'm so lonely, I just want to cuddle you"
"I can't sleep, can I come over and cuddle you?"
"I swear, we will just cuddle"

Sounds just like the opposing interpretations of cuddling in the text messages between John and Jane Doe.

Anonymous said...

A Duke graduate sent me this article, and I have to wonder even more, why is Brodhead still there?

Article headline: “Conservative Prof. Has Awesome Response to Guy Who Called Him the ‘Biggest Embarrassment to Higher Education in America’ [Mike Adams, professor of sociology and criminology at the University of North Carolina at Wilmington responds:]

“He then laid out nine examples of truly outrageous antics by other professors, administrators and campus groups in North Carolina to see how he stacks up, including:

[3. At Duke University, feminists hired a “sex worker” (read: prostitute) to speak as part of an event called the Sex Workers Art Show. After his speech, the male prostitute pulled down his pants, got down on his knees, and inserted a burning sparkler into his rectum. While it burned, he sang a verse of “the Star Spangled Banner.” I believe that stripping incident was almost as embarrassing as the other one involving the Duke Lacrosse team.]

Reader comment excerpt: “The only thing is that this is the first I’ve heard of any of the event that happened at Duke or anywhere else. It must have been covered at least locally. But I did some googling and can’t find on single thing about the bondage, the pedophilia, the insertions or anything else that took place on a college campus in a lecture hall and as part of official university curricula. Honestly I went to college and I find it hard to believe that a real university would allow rectal insertions in class.
I mean I can’t find nothing except third hand reports on right wing websites. You’d think if at a lecture at Duke University where some guy stripped down and stuck something up his bum there would be something in the news wouldn’t you?”
“Can anyone supply a link or two?”

Read More:

Anonymous said...

“Can anyone supply a link or two?”

I'm here. It happened. But that's mild compared to the scatological garbage that's taught in Duke's "Queer Studies" courses.

Duke Prof

Anonymous said...

North Carolina became the FIRST state to provide students with an attorney in these cases, even at the honor court level.