The lack of a fair and due process for men going through campus sexual assault disciplinary processes has been a frequent topic here.

We long ago warned of these Kangaroo courts for men on campus, resulting from a directive from the Obama Department of Education. That directive has been jettisoned by the Trump Education Department, but many schools still cling to it because ideologically the campus culture presumes that there is a “rape culture” and that men are aggressors.

In a case still working its way through the court, for example, a student has sued Oberlin College where there is a 100% conviction rate for accused students who go to a hearing.

The legal odds facing students, almost all of whom are men, can be daunting because campus procedures afford, at best, a tiny fraction of the procedural protections available in court. Courts defer to these campus procedures for private universities where there may be no constitutional due process right (unlike public universities), and students are left to arguing that the university did not follow its own procedures.

That’s what happened in a case making its way through the courts for a suspended Cornell University male student. The Cornell Sun reported on the case and how the student lost in the NY State Supreme Court (trial level) trying to overturn his campus conviction:

A Cornell sophomore who the University found guilty of sexually assaulting a woman lost a lawsuit against Cornell this month, clearing the way for the University to suspend the male student for two years, although the student has indicated he is appealing.

A University Hearing Panel ruled in May that the male student had sex with a female student who was too intoxicated to consent in August of 2016. The panel recommended that the male student be suspended for two years, and a Cornell Appeal Panel upheld the decision in July.

The sophomore student, whose name is withheld in court documents and who is referred to as John Doe, sued Cornell after the Appeal Panel decision in July and a judge halted the two-year suspension while he heard arguments in the case.

Judge Eugene Faughnan of the New York State Supreme Court in Tompkins County ruled in Cornell’s favor on Dec. 15, allowing the University to suspend the student and handing Cornell a decisive victory in a case that lasted nearly five months….

At stake in the court battle was whether Cornell had complied with its own policies throughout its Title IX Office’s investigation of Doe and whether the University’s Hearing and Appeal panels had enough evidence to find the student responsible….

Faughnan wrote in his decision that “Cornell substantially complied with its own policies and procedures and had a rational basis for its determination.” The judge added that the University’s suspension of the student can now go into effect because the court has upheld Cornell’s determinations.

A copy of the Court Order and Decision is here (pdf.)

The student has appealed to the Appellate Division of the State Supreme Court, which is the intermediary appeals court. (The Court of Appeals is the highest court in the state.)

In support of the student’s appeal, 23 Cornell Law School law professors (out of 64 “permanent” law professors) have requested permission to file an Amicus Brief. I was one of the signatories, though the drafting credit goes to the moving attorney, Prof. Sheri Lynn Johnson.

I knew that the brief had been prepared and would be filed, but found out about the actual filing from KC Johnson, History professor at Brooklyn College & CUNY Graduate Center, whose whose coverage of the Duke Lacrosse case was momentus and breathtaking. KC Johnson tweeted about the “remarkable filing“.

https://twitter.com/kcjohnson9/status/979421090459127809

As KC Johnson pointed out, the heart of the Amicus Brief was the inability of the student to contest the accusers credibility since he was not permitted to have any of his cross-examination questions asked:

https://twitter.com/kcjohnson9/status/979421090459127809

A full copy of the Motion for Leave to File an Amicus Brief (pdf.) is embedded at the bottom of the post.

Here are some excerpts from the affirmation in support of the motion, which provides an overview:

3. Among the issues on appeal, and the sole issue that the proposed amici curiae brief addresses, is the right of an accused student in a Title IX sexual misconduct hearing to test his accuser’s account of events and credibility by having a disciplinary hearing panel ask his accuser proper questions that he proposes. As explained in the brief, Cornell’s Title IX procedures expressly guarantee such a right, which is essential to truth-seeking and a fair adjudication in campus sexual assault proceedings. This right was not honored here.

4. As members of the Cornell community and professors who study, teach, and write about the rule of law, my law school colleagues who join this brief and I have a keen interest in the fairness and accuracy of Cornell University’s disciplinary proceedings. Cornell’s Title IX program affects our students, our community, and the reputation of the university where we teach.

* * *

8. We encourage this Court to continue to serve as an effective check on colleges and universities, which have been vested with authority to inflict life-altering punishment in this controversial area. See, e.g., Jacobson v. Blaise, 157 A.D. 3d 1072 (N.Y. App. Div. 2018); Doe v. Skidmore Coll., 152 A.D. 3d 932, 59 N.Y.S.3d 509 (N.Y. App. Div. 2017); Haug v. State Univ. of New York at Potsdam, 149 A.D.3d 1200, 51 N.Y.S.3d 663 (N.Y. App. Div. 2017).

9. The interests at stake for both the accuser and the accused require that college Title IX procedures not only be fair on paper, but  that they be faithfully and fairly applied. This did not occur here and we have concerns about whether it will occur in the future. This Court has an important role to play in ensuring that Cornell and other educational institutions comply with their own procedures and honor their commitments to provide important procedural protections, like the one at issue here, to students involved in campus sexual assault proceedings….

The Statement of Interest in the proposed brief summarizes why so many Cornell law professors, in their individual capacities, saw fit to question the process used by Cornell:

…Cornell’s Title IX procedures apply to all students at Cornell, including those law students whom we teach and mentor, and who serve as our teaching and research assistants; some of us also teach undergraduate students. Accordingly, on behalf of our students, as well as all students attending the University, we have an interest in ensuring that Cornell’s procedures are interpreted properly and applied fairly and faithfully. And, as is explained below, we believe that in this case, a Cornell disciplinary hearing panel failed to comply with an important procedural safeguard clearly set out in Cornell’s Title IX policy – the right of an accused student to have a disciplinary hearing panel conduct inquiry of his accuser about proper topics that he proposed ‒ and that the Supreme Court erred in its interpretation of this feature of Cornell’s policy. This violation of Cornell’s procedures may recur without action by this Court, thus harming our students in the future.

Further, it is in our interest that the academic institution to which we have devoted much of our careers be committed to fair process, that it comply with its own procedures, and that its reputation not be undermined by its deviation from fair procedures.[fn omitted]

Finally, in our scholarship, teaching, clinical work, and service, we are devoted to the rule of law, to truth-seeking, and to fundamental fairness. These commitments, along with our expertise, cause us concern about the federal government’s mandates to universities and colleges in Title IX matters, as well as their implementation in this and other cases. We question whether the required processes promote accurate results and whether they are fair to both complainants and respondents. We offer our accumulated knowledge and experience in the hope that it may be of use to the Court….

This portion of the proposed brief reflects the key prodecural problem at the hearing:

On April 17, 2017, when Roe testified at the hearing, the hearing panel did not ask Roe any of Doe’s proposed questions (either in the form he requested or in any other form) concerning Roe’s plans for the party, her recent breakup with her boyfriend, or her inconsistent statements. Indeed, it asked Roe no questions at all on these topics. R:1498-1514.

When Roe completed her hearing testimony, Doe was permitted to submit additional questions and topics for Roe under a provision providing that “[a]t the hearing, the parties . . . have an opportunity to propose reasonable additional questions and topics.” R:1447. While doing so, Doe noted that many of his previously submitted questions had not been asked. He reiterated his request for this questioning and also proposed additional inquiry, including questions focused on inconsistencies between Roe’s earlier statements and her hearing testimony. R:1681. Cornell’s hearing panel refused to ask Roe any additional questions. R:1514….

Accordingly, our point is not that Cornell should have given Doe the right to full cross-examination that he would be entitled in a criminal proceeding. Rather, we stress that the alternative to traditional cross-examination that Cornell’s procedures promised to Doe was crucial, and that the procedures he was promised should be interpreted in light of both the importance of those procedures to the accurate determination of the facts and also the public discussion and debate that was occurring when those procedures were adopted. In essence, by its Policy 6.4, Cornell promised to ask questions of the accuser in exchange for denying the accused the right to cross-examine, but Cornell broke its promise here.

You can read the full proposed Brief at the link and below for  discussion of the law as applied to this case.

Hopefully the court will accept and consider the arguments raised.

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John Doe v. Cornell – Motion of 23 Cornell Law Professors to File Amicus Brief in Support of Student by Legal Insurrection on Scribd