The costs to schools of dealing with allegations of date rapes and other campus sexual assaults, which may have already topped 100 million dollars, could skyrocket under plans announced this morning to sue nor only colleges, but also key academic administrators, for violating the constitutional rights of accused students.
The plans – and an explanation about how and why conducting expulsion hearings which do not permit accused students to cross examine accusers and others violates their right to Due Process under the U.S. Constitution – were revealed by public interest law professor John Banzhaf.
The controversial professor, “The Man Behind the Ban on Cigarette Commercials,” and “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” has also been called an “Entrepreneur of Litigation, [and] a Trial Lawyer’s Trial Lawyer.”
That’s because he helped develop and popularize many novel legal theories in addition of those related to tobacco. These include victories against food companies over the issue of fat (“The Man Big Tobacco and Now Fast Food Love to Hate,” and the lawyer “Who’s Leading the Battle Against Big Fat”), a leading Supreme Court decision protecting the environment, several novel law suits attacking governmental corruption, and over 100 successful legal actions protecting women from sex discrimination.
On this basis he announced at a press conference this morning at the National Press Club that “nobody can accuse me of being anti-woman, a men’s-rightist, or even a diehard conservative or libertarian.”
According to Prof Banzhaf, state schools considering dismissal of students charged with date rape or other sexual assaults must provide them with Due Process by assuring them of various procedural protections, including the right to cross examine adverse witnesses.
These fundamental rights cannot be taken away or abridged by the university, by any federal agency, or even by Congress, because they grow out of a constitutional principle and formula established by the U.S. Supreme Court. Moreover, entities and individuals – such as college presidents – who violate these rights can be sued in federal court, not only for monetary damages, but also for attorney fees.
The Supreme Court rule and formula provides that when people face serious losses based upon the finding of specific individual facts – whether that’s a loss of benefits, or of a job, or the loss of student status – the entity making the decision must adopt any procedural protection likely to help prevent an unfair loss of the benefit, unless it’s too expensive or otherwise too burdensome to do so.
Thus, in date rape situations, where there’s often no other evidence but his word against her’s, the accused must be able to use what Wigmore famously called “the greatest legal engine ever invented for the discovery of truth,” cross examination.
In other words, the right to be able to cross examine is most vital when the only two witnesses to an event tell diametrically opposed versions of the same event – which is typical in date rape cases.
For example, in a case known as Donahue v, Baker, 976 F.Supp. 136 (N.D. NY. 1997), a rape charge against a male student hinged solely on whether a female had consented to the act of sexual intercourse which both agreed had taken place.
The federal court held that the accused had a constitutional right to cross-examine the complainant because the only evidence that the act had not been consented to was her testimony, and the determination of guilt or innocence therefore rested solely on her credibility.
This fundamental principle has also been recognized by several federal courts of appeals.
For example, in Winnick v. Manning, 460 F.2d 545 (2d Cir. Conn. 1972), the court said: “if this case had resolved itself into a problem of credibility, cross examination of witnesses might have been essential to a fair hearing.”
This principles was echoed only a few years ago in Flaim v. Med. College of Ohio, 418 F.3d 629 (6th Cir. Ohio 2005) where the appellate judges quoted from exactly the same statement of the law.
Several lower federal courts have also reached the same conclusion.
It’s unfortunate but true that universities often react more quickly and effectively to legal and other pressures than to fairness, reason, or logic, says Banzhaf. For too long they failed to act decisively to complaints of rape because of pressure from coaches and big donors, and concerns about their reputations.
Then they overreacted to legal threats from the federal government to begin expelling students accused of rape, even if they has to scrap most procedures providing fairness, Banzhaf argues.
So, to help counter, or counterbalance, this pressure from the federal government, Banzhaf said he planned to work with others to put college president and other administrators on notice that they must begin providing students facing dismissal for date rape the fundamental procedural protections required by the Due Process clause of the United States Constitution, or face potential legal liability.
If they refuse, he plans to help attorneys representing the student to “SUE THE BASTARDS” – with law suits being brought not only against the school, but also its responsible administrators.
They must understand that being sued in one’s individual capacity is very unpleasant and taxing, even if the university promises to reimburse the administrator for any adverse judgments.
Being named as a defendant in a law suit can affect a person’s credit rating where the notation can remain for many years, regardless of the outcome of the litigation.
Many such individuals may also find it necessary to hire their own attorneys, not completely trusting that university lawyers will give their interests the same priority as their employer’s.
Finally, they may have to submit to pre-trial discovery.
So, to protect both their own interests, as well as the interests of their college or university, Banzhaf and his colleagues hope they will reexamine their institution’s procedures for deciding cases of date rape claims to be sure that they provide the accused with all the Due Process to which he is entitled.
Otherwise, like the tobacco companies and food companies and many others who believed they could never be held liable, they may be surprised when plaintiffs’ lawyers “Sue The Bastards.”
Read more at: http://pjmedia.com/instapundit/203568/