Mimesis Law
7 December 2019

Sixth Circuit To College Kids: “What Due Process?”

December 15, 2016 (Fault Lines) — It’s getting harder to justify the ridiculous kangaroo court system created by Title IX and the infamous “Dear Colleague” letter that mandated “compliance” by creating campus tribunals hearing sexual assault cases with a preponderance standard of proof.

The Sixth Circuit Court of Appeals needed twenty-nine pages to show how the University of Cincinnati’s “Administrative Review Committee’s” satisfied two former students’ due process rights and complied with Title IX. Somehow, a system that restricts accused students from buildings, allowed a “victim impact statement” to be read before an “adjudication,” and a hearing conducted in front of a panel that doesn’t even know the burden of proof is perfectly legal and denies no rights whatsoever.

If someone accuses you of sexual assault at the University of Cincinnati, you receive a visit from the campus Title IX coordinator. They will happily provide you with notice of the allegations, a copy of the school’s Title IX policies, and information about the investigation process. You will be given the floor to discuss your side of the story. Fourteen days after a complaint, the coordinator begins “interviewing witnesses and gathering relevant evidence.” Don’t worry, you’ll be allowed to give the Coordinator all the “discoverable” material you want in this time frame. This information goes into an “investigative report” viewable by the complainant and “respondent” for “review and comment.”

While you are under investigation, commenting on the Coordinator’s report, you might be subject to certain “accommodations.” School administrators and faculty can change your homework, ease up on deadlines for projects, and work with you outside the classroom. You’re also subject to punitive “interim measures,” including restrictions on access to certain buildings. All of this occurs before you ever reach the “trial,” a dog and pony show called the “Administrative Review Committee.”

The “Administrative Review Committee,” or ARC, is a group of UC administrators who apply a preponderance of the evidence standard to determine if you are “responsible” for sexual assault. You are permitted counsel at the hearing, but your attorney may not actively participate. If you want to cross examine a witness, you can only do so by submitting written questions to the ARC, who determine their relevance and whether the witness will answer them. A finding of “responsible” is appealable, but punishments range from “disciplinary probation to expulsion.”

We know these procedures because two UC students found “responsible” for committing sexual assault sued the University and three administrators for the way the school handled their cases. The first, a UC undergrad student, drew the ire of the campus Title IX coordinator after two women filed a complaint claiming he engaged in sexual activity without their consent. Daniel Cummins, the Assistant Dean of Students and Director for the Office of Judicial Affairs, interviewed “John Doe I” in person on March 28, 2014 about the issue. Doe I remained silent but otherwise denied the charges.

Cummins’ investigatory report found Doe I “responsible” for sexual assault. It did not include the physical evidence UC Police obtained. Doe I’s statements to UC police were absent. The same went for a witness who stated the two women were “pretty flirtatious” and “basically dragged” him to their room.

Doe I’s hearing didn’t go well at all. His attorney’s request the UC Police investigator be present at the hearing was ignored. The ARC excluded evidence like rape kit analysis, surveillance video, and text messages UC Police deemed relevant for their investigation. Doe I didn’t get to impeach a witness lacking “firsthand knowledge” of the incident. The hearing was what legal scholars term a “dumpster fire,” and Doe I left before the panel found him “responsible.”

The appeal wasn’t much better. Doe I alleged the panel was not advised of his presumption of innocence or that his complainants bore the burden of proof. The new panel refused to ask a number of submitted questions “intended to highlight inconsistencies in the complainant’s stories.” Prior to “adjudication,” the complainants heard “victim impact statements” from the complainants. Doe transferred to another institution after the new panel found him “responsible” without knowing who bore the burden of proof* and he received a three-year suspension.

Our second Doe’s story sounds similar to Doe I. Daniel Cummins met with him on March 26, 2014 and informed him of the complaint. Following this meeting, Cummins prepared his investigatory report. Doe II never saw the investigatory report prior to his hearing. Like Doe I, his ARC panel allowed a “victim impact statement” to be read before adjudication. Doe II’s panel misapplied the definition of “consent as set out in Title IX.”** The written cross-examination process did no good since no follow-ups were allowed. He appealed, and got a new hearing, with the same “procedural defects,” and a brand new twist as his accuser “stormed out of the hearing,” preventing Doe II from cross-examining her. Doe II’s punishment was probation and completion of a “seven-page research paper.”

The two students sued the school, Cummins, and two other administrators in the Southern District of Ohio on a Section 1983 suit, alleging among other things the “Administrative Review Council’s” hearings violated their due process rights. John Doe I and II ended up before the Sixth Circuit Court of Appeals after the Southern District of Ohio dismissed their case against all named defendants. Just like their appeals to UC, the Sixth Circuit didn’t treat our two maligned students any better.

Applying the standard in Mathews v. Eldrige, a 1976 Supreme Court case involving social security benefits, the Sixth Circuit shrugged and said school disciplinary hearings didn’t need to look like criminal trials. Since the ARC was a “disciplinary hearing,” satisfying due process simply meant giving the students an opportunity to “respond, explain, and defend.” Since both students got new ARCs after appeal, any procedural deficiencies were excused. Even the reading of victim impact statements prior to adjudication was fine since “procedural protections,” like the panel’s ability to judge victim credibility, was still available. Nothing to see here, since it’s college and their hearings aren’t like actual trials.

This opinion should scare the daylights out of any parent desiring to send their kids to college. A federal appeals court had an opportunity to challenge Title IX’s legitimacy, question the horrendous practices at UC, and draw a line in the sand with colleges trying cases suited for the courts. Instead, they deferred to the Department of Education’s Office of Civil Rights, and used a case involving government assistance to justify the continued use of a “law” that never was passed by a legislative body. Forget actual law. The courts now bow at the feet of OCR and Title IX.

*According to the Sixth Circuit’s opinion, UC’s Appeal Administrator, Denine Roco, said “Neither party has any burden of proof. Instead, the ARC [panel] uses the hearing to investigate what happened and then makes a finding based on the preponderance of evidence.” And people wonder why trench lawyers bang their heads over Title IX “courts.”

**There is no definition of “consent” in Title IX. UC’s Title IX policies attempt a rambling, nonsensical definition. The Sixth Circuit failed to address this, or recognize this glaring error in the opinion.

7 Comments on this post.

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  • SJE
    15 December 2016 at 11:08 am - Reply

    College is now often 200K+ and 4 years of your life. Getting disciplined or expelled not only leads to loss of that investment, but goes on your record making it much harder to get your degree and can (and likely will) affect your job and career prospects. If I was on a hiring committee, any young professional with that sort of black mark against them would be low on my list of hires, That is because if there was ever any sort of HR complaint against him, the company, or me, my decision to hire a “sexual predator” would be one of the first pieces of evidence.

    We are not talking about membership in the local pool. We are talking about someone’s life.

    As for the law, IIRC the SCOTUS case concerned whether tribunals could use faster and more efficient methods to stamp out welfare fraud, and when the benefit was not a right. I’d compare that to the seriousness of the punishment in the college case, and the significant time and money creates at the least a right in contract and in reputation that requires both monetary and specific remedy.

    • CLS
      15 December 2016 at 12:31 pm - Reply

      Doe II addressed the potential negative effects the “responsible” finding had on his professional reputation. The Sixth Circuit glossed over it, among other issues. I stuck to the due process issue for this post because there’s only so much I can write before a post turns into a rant. We try to educate people here, not rant.

  • Picador
    15 December 2016 at 12:01 pm - Reply

    I’m not ordinarily inclined to defend stuff like this, but I’m not totally convinced that this is out of line with other mechanisms by which your life can be ruined by allegations of wrongdoing that aren’t proven beyond a reasonable doubt. You can certainly get fired from your job and black-listed from future employment by allegations of sexual misconduct that don’t even get this level of scrutiny from the HR department, for example.

    If the students think they’ve been falsely accused of sexual assault by the university, they have defamation available as a remedy. The problem, of course, is that the investigation here, while a far cry from the procedural and evidentiary requirements for a criminal conviction, probably doesn’t rise to the level of recklessness with regard to the truth of the allegations.

    I’m not sure that this isn’t actually a better way of dealing with sexual misconduct than the criminal justice system, which is really a terrible system for sorting out the truth about inherently ambiguous, subjective encounters like this. I’d much rather see civil remedies for sexual misconduct take over the job of regulating this kind of behaviour rather than seeing the procedural safeguards for criminal defendants weakened any further. And don’t fool yourself: that is in the works. It’s only a matter of time before the “affirmative consent” standard rears its head in the US, as it already has in Canada, and turns every sexually active man or woman into a serial rapist under the law. I’d much rather see a bunch of people get unfairly smeared and lose their jobs/university than see prosecutors spend their days picking and choosing whom they want to send to prison for 2-10 years.

    • CLS
      15 December 2016 at 12:39 pm - Reply

      I am normally inclined to let stupid lie as a testament to the stupid. This isn’t just stupid. It’s Billy Madison level asinine.

      The criminal justice system requires the State or Feds to prove rape or sexual assault “beyond a reasonable doubt.” You get the ability to have counsel in court who can defend you. Your counsel can introduce evidence, and rules of evidence apply. In criminal court the trier of fact doesn’t hear “victim impact statements” from the alleged victim before the verdict is announced. And the accuser doesn’t get to storm out of the proceeding, never to return, to never face the accused again.

      What’s troublesome is you took the time to read this post, process the words, and then come to the conclusion you’re not sure this isn’t better than people accused of sexual misconduct going through the courts. Congratulations, this one’s for you.

  • Minnesota College Football Players Silenced For Title IX Protest
    20 December 2016 at 9:18 am - Reply

    […] UPDATE: Lee Hutton, attorney for the ten players, announced that he planned to file “multiple lawsuits” in federal court this week seeking immediate re-instatement of the ten suspended players. Here’s hoping the Eighth Circuit doesn’t follow the Sixth’s lead. […]