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23 Cornell Law Profs support suspended male student in Title IX court appeal

23 Cornell Law Profs support suspended male student in Title IX court appeal

In case where college hearing panel refused to ask the accuser any of the questions submitted by the accused contesting the credibility of her complaint.

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.

———————-

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

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Comments

Why only 23 of the 64? Fear?

Was an alcohol level done on the girl?

Does she habitually drink to the point of blackout? Because if she does, it would take less alcohol to get to that point.

How long after the fact did she go to the “school” to lodge her complaint?

I would hate to be dating and a male today, I think I would be celibate or just pay

Yup. Two coeds get equally drunk but only the male is responsible for ensuring consent.

Worse, although he is likely as intoxicated as her, he is responsible for adjudicating whether or not she is too intoxicated to give consent. Does that sound logical to you?

1) this only reinforces the bigoted stereotype that women are subhuman, like livestock, and cannot be held responsible for the decisions they make. It’s one of the reasons men were put in charge of “their” women in the 18th century and help legally responsible for their actions, like when your dog bites pedestrian.

2) how does the double standard for male students on campus not violate equal protection under the law? If 2 students are both too drunk to give consent then technically they have raped each other.

DouglasJBender | April 1, 2018 at 8:43 pm

If only the male student’s name was “Bill Clinton”….

You have the right to submit questions for the accuser. Of course we won’t ask any of them, but you can submit as many as you want.

Yeah, that sounds fair. Our founding fathers would be right behind that.

It’s high time for Congress to repeal this stupid statute. It’s been tortured to death, and used for a tool of radicals.

    jhn1 in reply to Ragspierre. | April 2, 2018 at 1:17 am

    It wasn’t a law or statute, but a “directive”, basically an executive order lite. It has already been withdrawn, but the colleges like it so they are still inflicting it.

      Milhouse in reply to jhn1. | April 2, 2018 at 2:48 am

      He’s referring to Title 9. Of which I’ve never been a fan, and he’s right that it should be repealed. I just don’t think repealing it would fix this situation. And just maybe, in the current misandrist atmosphere, a DOE with DeVos firmly in control (which she is not yet) could use it for good instead of evil, by going after abuses like this.

    Milhouse in reply to Ragspierre. | April 2, 2018 at 2:02 am

    Repealing Title 9 would have no effect on these cases. Colleges don’t have these procedures because Title 9 requires them, they have them because they want them, fanatically believe in them, consider them necessary for social justice and the continuing jihad against patriarchy, heteronormativity, cis-supremacy, white and male privilege, and all the other newly-discovered ills that so beset our society today, but of which we were so blithely ignorant just a short time ago.

    I totally agree. And while we are at it, let’s remove or re-write the Americans with Disability Act.

    Arminius in reply to Ragspierre. | April 3, 2018 at 11:51 am

    I’m all for leaving people to live with the consequences.

    But criminalizing drunken sex is a step too far.

The proper people to investigate any crime are the local police( not the captive campus police) and the local district attorney. It is against the law to make a false police report but they can allege anything to to a campus kangaroo court.

    Milhouse in reply to dunce1239. | April 2, 2018 at 2:06 am

    But this isn’t about investigating a crime, it’s about a breach of college rules. Regardless of what the authorities do about a suspected crime, the college has an independent duty to their students to ensure them a safe environment by removing dangerous people, so it must have a procedure to determine who is dangerous enough that they must be removed. Nobody’s disputing that, but they have a corresponding duty to those same students not to arbitrarily kick them out based on a fantastic accusation.

      Tom Servo in reply to Milhouse. | April 2, 2018 at 9:14 am

      The problem is that the University is using language such as “guilt”, “Hearing” and “conviction”, leading to the widespread impressions that they are truly running a parallel legal system. It seems to be much the same problem as happened in the middle ages, when the Church demanded the right to continue running it’s own legal system for its own people, free from state (royal) interference. The Church eventually lost that fight, as it had to. Now the Clerics are at it again, and they need to be put back in their place again.

        Milhouse in reply to Tom Servo. | April 2, 2018 at 12:31 pm

        No, it is not. It does not find people “guilty” but “responsible”.

        And the churches still do run their own legal systems. Nobody has ever tried to stop them, and why should they? Here in the US the first amendment forbids the state from interfering.

      Edward in reply to Milhouse. | April 4, 2018 at 9:01 am

      Having sexual relations with someone allegedly incapable of giving consent is rape. The college is alleging a rape has occurred and presumes to adjudicate administratively a criminal matter. A decent case can be made that the college is actively obstructing justice by failing to report the alleged crime to the proper authorities. Proper reporting of crimes would be the college’s responsibility to the protection of students.

The great majority of college administrators and faculty are leftist morons. Unless something is done to remedy this, the insane policies and social/political indoctrination will continue. The system and the people who run it are the problem, not any particular facet of it.

Rape and sexual assault are serious matters not mere matters of college rules and should always be referred to law enforcement and the courts which offer both the accused and accuser due process of law. It is bad enough that an accused has questions filtered by the campus system but then is deprived of even this protection. The answer would be state law that when possible criminal charges are involved state agencies and courts preempt the campus “judicial” system for a system without due process rights is fundamentally flawed.

    Milhouse in reply to Cicero. | April 2, 2018 at 1:37 pm

    I don’t see how a state could have the authority to preempt the internal disciplinary procedures of a private entity. Do you think it could do the same thing to a employer, and forbid him from firing employees accused of robbery, or preempt his internal procedure for determining whether to fire them?

      jhn1 in reply to Milhouse. | April 2, 2018 at 1:54 pm

      Huhhh????
      Courts do that all the time. Lawsuits over somebody getting fired wants their job back, the lost wages when they were not doing their jobs, and legal fees (and punitive damages when some statute allows) because they shouldn’t have been fired, or the firing did not completely follow some firing protocol; and can be framed as illegally anti-whistleblower or racist or misogynist or whatever category one could hope a jury might go along with.

        Milhouse in reply to jhn1. | April 3, 2018 at 5:42 am

        BS. There are no lawsuits over anyone being fired, unless they have a contract limiting the employer’s right to fire them, or there’s some state or local law imposing such limits. But I doubt any state could impose requirements on the employer’s method of determining the employee’s guilt.

        There is no such thing as “whistleblower” laws for private entities.

        And to claim racial discrimination you have to prove it.

      Edward in reply to Milhouse. | April 4, 2018 at 9:52 am

      Government’s criminal statutes trump a private entity’s internal disciplinary rules – period. Even the Church’s Canon Law does not prevent civil authorities prosecuting a Priest for criminal acts.

kenoshamarge | April 2, 2018 at 12:01 pm

Let women in they said, it will make for better schools they said and many of us worked for and believed that.

Now stupid little twits who get drunk and do something stupid, which getting drunk nearly always causes, blames someone else and is entitled to ruin his life.

I don’t believe in segregation by race but I think I’m beginning to believe in segregation by sex.

kenoshamarge | April 2, 2018 at 12:05 pm

Oh and guys, it’s lot cheaper to go to a house of prostitution and pay than to a courthouse and pay. It’s become more and more fundamental that young women who cannot control themselves are not willing to take responsibility for their own actions.

This does not excuse actual rape. But that isn’t what we’re talking about. We’re talking about sex between two consenting adults. Until one decides she didn’t consent. After the fact.

    Arminius in reply to kenoshamarge. | April 3, 2018 at 11:45 am

    I was in my forties before I got religion. To where it stuck. The chaplains would laugh at us, showing up for service after leaving port, Thailand.

    And, no, the Thais aren’t particularly immoral. They cater to us. And they laugh.

    Edward in reply to kenoshamarge. | April 4, 2018 at 9:57 am

    Actual rape is what has been alleged, with the college taking it upon itself to adjudicate an issue which is a matter for law enforcement, prosecutors and (if need be) the courts and jurors to decide. It may well be that she did give consent and later regretted the decision. But that isn’t what is being alleged here with “too drunk and incapacitated to be able to give consent.” If a person is incapable of giving consent, or alleges that to be the case, it is an allegation of rape.

Sexual assault is a criminal matter and does not belong in a college “the dog ate my homework” forum.

That’s a beautiful place. I don’t think I could put up with the snow.

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