Friday, May 30, 2014

Due Process and Duke

[Update, 5.43pm: Judge Smith's preliminary injunction is here.]

Over at Minding the Campus, I write about Duke joining the list of universities facing a lawsuit for violating the due process rights of a student accused of sexual assault. The student, Lewis McLeod, was expelled under what appears to be dubious reasoning just before he graduated. (And a hat tip to Independent reporter John Tucker, who covered the hearing and provided a comprehensive report.)

In a bold move, last yesterday afternoon Judge Osmond Smith (to whom the case was assigned) issued an injunction against Duke, preventing the university from expelling McLeod until a trial can be held. Smith acted on the basis that a trial would show that Duke had “breached, violated, or otherwise deprived the plaintiff of material rights.”

The Duke spokesperson responded to the legal setback by (very oddly) terming the school “pleased.” The spokesperson added, “Duke follows federal legal requirements for complaints of student sexual misconduct and works very hard to make sure the process is fair and just in every case.” [emphasis added]

That “fair and just process” is one in which:
  • the accused student is consigned to an “advocate” who cannot speak in the hearing that will determine whether Duke brands him a rapist;
  • consent is vaguely defined, on grounds that “alcohol or other drugs can lower inhibitions and create an atmosphere of confusion over whether consent is freely and effectively given”;
  • a preponderance of evidence (50.01 percent) threshold is used;
  • the accused student cannot directly cross-examine his accuser;
  • the accused student only has a maximum of five days to examine the evidence that Duke has compiled against him, while he lacks the power to subpoena potentially exculpatory evidence from the accuser;
  • double jeopardy exists, in that the accuser can appeal a not-guilty finding;
  • Duke is allowed to use evidence from anonymous parties against the accused student.
Fair and just, according to Duke.

26 comments:

William L. Anderson said...

Here is the problem, KC. Duke did not make up this procedure; the Obama administration did. Colleges and universities that do NOT follow what you laid out are subject not only to investigation, but also having its federal money taken away, which means that government-based student loans would be disallowed, essentially shutting down the place.

I agree that Duke's administration already has proven to be utterly dishonest and craven, so I have no sympathy there. However, the Department of Education has announced that there are 55 colleges and universities, including my own, that are "under investigation" because they did not come to the conclusions on cases (find a defendant guilty) that the DOE wants them to have.

The "Dear Colleague" letter and the Obama administration's policy is not about protecting students or trying to "end rape" on campus. It is just another means to empower the Hard Left further, and given that the Hard Left already rules the "commanding heights" of education and the media.

Frostburg State, where I teach, is in real danger here and our administration knows that in order to avoid being investigated in the future, it must simply declare every male who is accused to be guilty no matter the evidence. Notice that the DOE will NOT be investigating cases in which the defendant is found guilty.

Thus, the default position is not going to be "preponderance of the evidence," but rather guilty. The DOE has sent a missile at every institution of higher learning to tell people that the outcomes must be predetermined...or else.

Again, this is not a situation in which a policy is misunderstood or that the people involved actually want to find the truth. No, it is about furthering political goals of certain people, including President Barack Obama. These are not people who want intellectual honesty or who want justice.

Instead, these are people who want to use the facade of "due process" in order to push their own agenda. Just as my generation, the "free speech" generation, ultimately created campus speech codes, the "free sex" generation also has created an atmosphere of terror in which any male can be randomly selected, accused, and convicted.

By the way, it does not matter if a student never had contact at all, sexual or otherwise. To point out that fact would be what the DOE calls a "rational defense," and the DOE guidelines state that a "rational defense" is to be seen as "proof" of guilt. Just as Cohan and Nifong claimed that Reade Seligmann's alibi was actually a clever ruse meant to throw the investigators off the trail, the Obama administration considers real facts to be nothing more than white noise to be ignored when people are seeking predetermined outcomes.

William L. Anderson said...

I should add that this is not a situation in which people of good will are being overzealous. It is a situation in which the people in charge know exactly what they are doing and they are acting from a position of power and are showing that they are not afraid to use -- and abuse -- the power and authority they have.

Furthermore, this is not a situation of "If I only can get to the Czar" in which one believes that it only takes the person in charge to be notified that his or her underlings are engaged in wrongdoing. This is a policy that comes from the top. President Obama has made that very, very clear in any number of his public statements.

This policy did not come from the lower reaches of the Department of Education. It comes from the White House and whoever wrote the "Dear Colleague" letter simply was following instructions.

While we can decry the loss of "due process" at colleges and universities, we also should take note that the principle of the accusation being in and of itself "proof" of a sex crime is enshrined into law by the Violence Against Women Act and the various CAPTA laws that began in 1974 with the infamous Mondale Act.

To get around the fact that these laws essentially require conviction of innocent people, the authorities scream out the bogus "20 percent" rape on campus figure. As KC already has pointed out elsewhere, 20 percent constitutes a much larger number than what is the case in the WORST high-crime areas of our country.

But bogus numbers don't matter; the implementation of bad policies now is the norm.

Unknown said...

The difficulty of defining incapacitation and consent was underscored last week when Dean Wasilolek took the stand. Rachel B. Hitch, a Raleigh attorney representing McLeod, asked Wasiolek what would happen if two students got drunk to the point of incapacity, and then had sex.

"They have raped each other and are subject to explusion?" Hitch asked.

"Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex," said Wasiolek.


That is...interesting.

KC Johnson said...

To Bill:

I agree completely.

It's worth noting, though, that it many ways the most pernicious effect of the Dear Colleague letter has been to encourage extremists on campus to go beyond even the DCL's draconian terms.

Nothing in the DCL, for instance, requires a presumption of expulsion; or forbids a university from allowing a student access to outside counsel; or requires a university (as here) to allow anonymous testimony; or even urges a university to define alcohol & consent in a way to allow one drink to be interpreted as possibly eliminating consent.

Allison Strange said...

The Dept of Education, college administrators and rape culture propagators around the country don't see the campus tribunals as anything more than an "educational process". In the roundtable discussion that Sen. McCaskill recently held, she stated that the preponderance standard is fully reasonable since the premise is that an accused student is only losing something of value and is not losing liberty. My questions are: 1) what kind of education are wrongfully accused students getting out of this process?; and 2) if expelled based on wrongful and unsubstantiated accusations, does anyone truly believe that in losing college credits and tuition money a student is not indeed losing the liberty to pursue life and career goals?

Anonymous said...

Does Duke's “fair and just process":
- require that a record of the proceedings be made public?
- provide severe penalties for those providing testimony that is later proved to be false?
- permit the accused the right to appeal?

I suspect not.

Allison Strange said...

I cannot answer for Duke, but I can answer for Auburn University in the way they treated Joshua Strange.
1. They did record the hearing but because Joshua made the recording available to the media, Auburn is now "seeking guidance" from the Office of Family Compliance at the US Dept of Ed on whether they are required to give him access to his educational records under FERPA. They have sent him a letter saying that they do not want him to be able to divulge any more information about the purported "victim" in his case.
2. Auburn did not contact Joshua's witnesses nor to our knowledge actually investigate the accuser's claims. Since the TItle IX coordinator stated in an email that she only deals with students and not attorneys, and since Josh's attorney was not allowed to speak at the student hearing, no one has had the opportunity to show the admin at Auburn all of the proof that we have that his accuser proferred false testimony against him. Plus, he has a lifetime no-trespass order against him so he cannot go to campus and look at his file nor speak to anyone in the adminstration.
3. Josh did file an appeal within the 5 days allowed by the student conduct code. However, the accuser was also allowed to file a response to his appeal, and although she filed it more than a month after he filed his appeal - outside of her alloted 5 day response period - they upheld her response and denied Josh's appeal.
The goal is not to allow the student to appeal and be potentially re-admitted. The goal is to cover the fact that the student is deemed guilty from the moment the accusation is filed and the process is just to make it appear as though the school is being fair.

But Josh is not alone in the way he was treated. Families of students from around the country in this same situation have joined together and formed a group, Families Advocating for Campus Equality, and you can find more information at our website: facecampusequality.org. We are also on Twitter, @facecampusequal, and on Facebook.

William L. Anderson said...

In that case, the local Lee County prosecutor looked at the evidence and recommended that Strange sue Auburn University. THAT is what the "Dear Colleague" letter has done: it has made official administrative policy based on lies and more lies.

My sense is that the DOE knew exactly what would happen, and while the "guidelines" do not recommend lying and cheating, I am sure that the people there are quite pleased at what they are seeing.

Allison Strange said...

I am curious on the information that the Lee County prosecutor recommended litigation. Please elaborate.

Bumper said...

Student/Faculty tribunals have been failing for decades. At least back to the sixties when I first became aware of them. The DOJ just set in concrete what they have been doing all along.

Rape is a crime. It has no place being adjudicated in a kangaroo court comprised of amateurs. It is the province of police, prosecutors and judges. OK, except in Durham, NC. But in this case even the "Durham police declined to pursue charges." Duke still can't take a hint.

William L. Anderson said...

Allison,

I heard that from an attorney there, but I cannot remember his name. It has been a while, but from what I recall, Auburn turned the material over to the DA who essentially laughed it out of his office.

That particular case, however, is especially galling. The people at Auburn KNEW what they were doing.

Auburn is where I did my Ph.D. studies, and while I was there 15+ years ago, the leadership of the board was dishonest and abysmal. I'm not surprised that the whole place now is infected with dishonesty.

Allison Strange said...

Thanks for the info, Bill. I am always curious about what we don't know about Josh's case. Auburn University has been very unresponsive to Josh's request to see his file even though he began sending FERPA requests to them on January 15, 2014. Here it is May 31 and he still has nothing from them, even though FERPA mandates a 45-day reponse period. He did not even get them to answer him at all until May 3. He is a little tired of waiting. Meanwhile. back at the ranch, his accuser is still a student and will be allowed to graduate, as far as we know, inspite of all the evidence that we have that she lied. No one seems to give a damn about the truth - and his accuser is a TOTAL liar. Sad commentary on what our college students are actually learning, really. Anyway, thanks for your response. We are pleased to know that, inspite of his presentation to the Grand Jury and the ensuing "no bill", the DA really did believe Josh was not guilty. That means a lot to all of us, especially Josh.

Jim In San Diego said...

Allison:

Josh has options.

Get a lawyer:

1. Seek an injunction to enforce FERPA. The university will have to respond.

2. File a civil action against the accuser and the university for both libel and defamation. Auburn university is not a court of law, and defamation will not have the privilege it does in court. There are probably other causes of action, including interference with contract, and the like.

Good luck.

Jim Peterson

Jim In San Diego said...

Allison:

ps:

3. Seek an injunction to prevent Auburn from expelling Josh. There are numerous grounds, starting with deprivation of a valuable right without due process. You might communicate with the attorney(s) representing the Duke student who recently went thru this.

Jim Peterson

Jim In San Diego said...
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Jim In San Diego said...
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Jim In San Diego said...

Allison again:

5. It has been a while since I practiced law, but it certainly seems to me that Auburns (and Dukes) policies violate Title VI of the Civil Rights Act, which prohibits discrimination against anyone on the basis of ......gender....

Isn't that exactly what Auburn, Duke et al are doing? (recall Dean Sue Wosiak's comment: males are responsible to ensure sex is consensual; females are not.) This is not the law as it applies to rape. Rather apparently gender discrimination against males, is it not?

I hope this is not just IMHO.

Jim Peterson

Allison Strange said...

Jim,
Thanks for the comments. We did seek and injunction against Auburn for Josh's reinstatement pending further investigation/litigation. The judge denied it saying that we could not prove that expulsion causes irreparable harm. At that point, we knew that filing in State court would not be advantageous because of Auburn's power and because Auburn would most likely remove it to Federal court anyway. We had attorneys that were willing to file in Federal court but we could not afford the upfront $50,000 to $100,000 retainer they wanted. There were no law firms around Auburn large enough to handle the case so it meant going outside of Auburn and actually outside of Alabame to find anyone willing to take the case. Lots of attorneys said we had a great case but none of them could afford the litigation time for a contingency case. No one wanted to sue his accuser because she had no money of her own so it would have just been a judgment and there is no money in that.
We had spent our money fighting the criminal charges that were eventually all dropped for lack of any evidence.
You are right on every point you made. The only problem was money. I spent 2 years trying to find a foundation or a law firm that would help us and just ran out of time. According to the lawyers, our 2-year statute ran out this past February. So, Josh and I have turned our attention to trying to make sure we find a way to make a difference for others in this mess.

Jim In San Diego said...

Allison:

I understand your problem completely.

In your shoes, I would continue with the following:

5. Approach the Justice Department, and seek their assistance to enforce the Civil Rights Act. This is not likely to be effective under this administration and this Attorney General, imho. Nevertheless, you will create a record. Sometimes that can be very useful. The request would not take much time - send what has already been produced in this case.

6. Please monitor and contribute to the blog, "Minding the Campus", which is now focussed on the issue of lack of due process for males in college accused of crimes.

7. Develop contacts with attorneys assisting other students. Their various court filings are public records. Their excellent and expensive legal work can be obtained for virtually nothing.

8. Contact the ACLU to see if they can be persuaded to take up this cause. Their attitude is uncertain, but we should find out. They have money and are willing to crusade if necessary.

Never, never, never give up (Winston Churchill)

Jim Peterson

A Duke Dad said...

Allison -

Have you contacted FIRE - The Foundation for Individual Rights in Education ?

www.thefire.org/about-us/programs/

Their Individual Rights Defense Program might be a very useful resource and advocate.

William L. Anderson said...

There is a larger issue here, and that is the total politicization of higher education. Auburn University's administration engaged in this behavior not because it was right, but because it was politically expedient.

Notice Allison's point that no law firm in Alabama was willing to take this case. Why? Because of political intimidation from Auburn University, its alumni, and the politicians tied to the university.

There is something else: Auburn does not have to worry about President Obama's Department of Education "investigating" the university because of the decision it made. Now, this decision was unjust and false on its face. It was based upon a lie, and everyone in that administration knows that fact.

Yet, the leadership of Auburn University chose DELIBERATELY to promote a lie in large part because that is what the President of the United States and his political allies wanted the university's leadership to do.

Does anyone believe that we would have had these unjust outcomes without the "Dear Colleague" letter that came from the Obama administration? Is it not obvious that Auburn is trying to please the DOE? It certainly is not pleasing its alumni, and some people already have refused to give money to the university because of this decision.

(The university, of course, was much more worried about receiving FEDERAL money than alumni money, and I am sure that with the latest round of "investigations" of universities, including my own employer, Frostburg State University, you will see more of these kinds of decisions, since administrators now will want to be on the "safe" side of the Obama administration.)

The interesting thing, of course, will be to see what happens should a Republican be elected to the White House in 2016. (I don't think that will happen, but I am presenting this as a thought experiment.)

If that president were to scale back on what it wants institutions of higher learning to define as sexual assault, then I suspect that the media would crucify him and declare that he and his party were advocates of rape. It then would be interesting to watch the Republicans run for cover -- as they always do.

I believe that this is a harbinger of worse things to come. For now, we are seeing administrative actions. However, feminists would love to put the definitions used by the DOE into criminal law itself and redefine rape and sexual assault. If that happens, no doubt the New York Times will drop its complaint that there are too many people in U.S. prisons and clamor for the jails to be filled with newly-convicted "rapists."

William L. Anderson said...

This speaks for itself. Auburn University has a "creed" that supposedly defines the character of the university and outlines the character and behavior expected of Auburn students.

It is clear, however, that like so many things else about Auburn, the creed is a fraud:

THE AUBURN CREED
I believe that this is a practical world and that I can count only on what I earn. Therefore, I believe in work, hard work.

I believe in education, which gives me the knowledge to work wisely and trains my mind and my hands to work skillfully.

I believe in honesty and truthfulness, without which I cannot win the respect and confidence of my fellow men.

I believe in a sound mind, in a sound body and a spirit that is not afraid, and in clean sports that develop these qualities.

I believe in obedience to law because it protects the rights of all.

I believe in the human touch, which cultivates sympathy with my fellow men and mutual helpfulness and brings happiness for all.

I believe in my Country, because it is a land of freedom and because it is my own home, and that I can best serve that country by "doing justly, loving mercy, and walking humbly with my God."

And because Auburn men and women believe in these things, I believe in Auburn and love it.


-George Petrie (1945)

Allison Strange said...

Jim, I will certainly look at filing with the DOJ, although I fear you are correct that with this administration, it probably will not take us very far. I did approach the ACLU for help and could not get anyone to contact me about the case.

A Duke Dad, we are working very closely with FIRE. In fact, they have been very supportive in getting us time with legislative offices in D.C., etc. They just don't have the resources to take up suing an SEC school. It is a 4-6 year process in Federal court. I would love to sue the beegeezers out of them but we just cannot find the funding and we sure don't have it.

There are so many concerns about where the US gov is going with this. Senator McCaskill is taking up this cause now and has elicited rape culture propagtors to sit in on her rountable discussions currently taking place - if you are interested and want to see how scary this stuff is becoming, look up and watch the first one online on c-span at
http://www.c-span.org/video/?319448-1/campus-sexual-assault.

Keep the advice coming....I am always looking for thoughts that I have not pursued. Somewhere, sometime we will beat on the correct drum and people will listen.

Allison Strange said...

I totally agree with your take on the reasoning behind Auburn's behavior and their rushing through of Josh's disciplinary case. It is all about appearances and not about real interest in doing the right thing. As long as these cases are tied to funding from US DOEd, students will be under the bus every time they are accused.

It is my opinion that the Title IX Coordinator and the Asst Director of Public Safety at Auburn University did not care one bit about whether Josh could prove himself not guilty. They cared that they had a pretty, brown-haired daughter of an Auburn alum that was claiming she had been assaulted on one occasion and battered on another - both of which are patently false - and they had to protect her at all costs so that they kept funding coming. They don't give one rat's ass about the AU Creed or the truth.

If you could see the information that I have collected on his accuser's behavior from her Facebook and Twitter pages during the time when she was supposedly the "victim" it would curl your toes.

William L. Anderson said...

Time and time again, we see where the promise of federal money corrupts the justice process. The feds give us the Drug War, with all of its violence, property confiscation, and no-know SWAT raids that result in the deaths of innocents.

We have seen thousands of people falsely accused of child molestation because the feds provide money to states and localities to pursue these "crimes," and whether or not they happened is irrelevant. We see the feds providing money to pursue sexual assault cases; ergo, we get the Duke Lacrosse Case, the same case that essentially birthed this wonderful blog.

(Nifong's office received federal money, and part of the "victims' fund" that supported Crystal Mangum for a year came from federal sources. I always believed that Nifong could have been vulnerable to a felony charge of misusing federal funds, but, alas, no one wanted to charge dear Mikey of any serious crimes, despite the fact that he was and is a serious criminal.)

The problem, of course, is that policies that use slogans and ideology instead of simple truth as their polestars are going to create real victims, and Josh is one of those victims. Our various "isms" almost always leave behind carnage and pain, and you got the full brunt of it.

By the way, I taught at North Greenville University in your area for two years (1999 to 2001) before coming to Frostburg State. I liked the Upstate a lot and miss being close to the Smokies and somewhat close (about four hours) from my family. Right after I left North Greenville, my oldest daughter took a sports broadcasting position with WLOS and was there until she told me she wanted to have a job that would allow her to have a family life. She has done well since, to put it mildly, and now lives in Chattanooga with her family.

Please keep in touch with me, Allison. You can get my email through the blog that accompanies my Google ID. (I have not done that blog in a while, as four teenagers have taken a lot of time I previously used for writing.)

Jim In San Diego said...

Allison

If you are still following this thread, I have an extensive set of suggestions as how to pursue expensive legal action on the cheap, where the facts of the case are already developed, and the issue is one affecting many others. This is based on my own experience as an attorney.

Please send me a contact email, if you wish. My email is: grandjetejp@gmail.com

Jim Peterson