A Tale of Two Judges
Beyond the considerable personal, financial, and emotional toll that comes with waging a federal lawsuit, one other item confronts accused students if they decide to go to court—the randomness of judicial assignments. Two cases from last week show how, in most of these cases, the outcome depends almost entirely on the judge to whom the matter is assigned. An indifferent judge will jettison even the strongest of cases. And a conscientious judge will be willing to focus on the key question at hand (the college’s fairness) even in cases where the facts aren’t clear-cut.
For an example of the latter pattern, consider a decision from Judge Tim Ellis, of the Eastern District of Virginia. (You can read Judge Ellis’ opinion here.) The case came out of George Mason, where a student was engaged in a consensual BDSM relationship with a student from another school. The couple broke up, and according to the undisputed record, the male student didn’t take it well. (At one point, he called his former girlfriend to say he’d kill himself unless she spoke with him.) She eventually accused him of sexual assault during their relationship.
George Mason charged the student with two offenses—failing to obtain the accuser’s consent in an October 2013 incident, and violating the university’s then-speech code with his threatening phone call. The problem? The university didn’t seem to initially understand that context of the couple’s BDSM relationship, and by the time the hearing occurred, the panel concluded that the case was too murky to come back with a guilty finding.
Pre-Dear Colleague letter, this decision would have ended the case, but the accuser appealed. At this point, George Mason began a string of procedural violations that prompted Judge Ellis’ decision. Though the appeal was supposed to originate with the chair of the hearing panel, that didn’t occur. The bureaucrat who heard the appeal, Brent Ericson, then had ex parteconversations with the accuser. He decided to effectively toss out the panel’s decision and review the case de novo. And he broadened the allegations to include all aspects of the couple’s relationship, even as the accused student still thought he was only defending against a single incident. By the time Ericson met with the accused student, he already had decided the accused was guilty.
Judge Ellis reasoned that colleges don’t have to provide a perfect amount of due process, but this laughable procedure was far too much. He also offered two important, broader insights. On why these cases are so important, he noted, if an accused student “seeks education or employment with institutions or organizations that require disclosure of [the student’s college] records, [his] only options are to forgo opportunities with those institutions or organizations or to authorize the dissemination of records that would likely foreclose [his] ability to pursue such opportunities because of the allegedly defamatory nature of the records.” It’s important, therefore, for colleges to get the decision right.
Ellis also had sharp words for the exceptionally broad speech code (which has since been repealed) upon which George Mason partially relied to make its case. “Controversial and sometimes offensive ideas and viewpoints,” he wrote, “are central to the educational mission of universities. It follows that university students cannot thrive without a certain thickness of skin that allows them to engage with expressions that might cause ‘distress’ or ‘discomfort,’ which is precisely the type of the speech [the GMU] code seeks to suppress.” In short, due process and civil liberties matter, at least in Judge Ellis’ courtroom.
Not so much for Magistrate Judge Terence Kemp, of the Southern District of Ohio. He had before him one of the three most troubling campus cases I’ve seen (along with Amherst and Miami of Ohio) since I started writing about this issue. It involved a former Ohio State student who was pursuing a joint MBA/MD degree. Four months before receiving his MD, he learned that he was being accused of sexual assault by woman with whom he had been briefly involved ten months before. (The allegation was remarkably non-specific: she said she had no memory of events, but was sure she hadn’t consented.)
What he didn’t know—and wouldn’t find out until it was too late: two days before she reported the sexual assault, his accuser had received word that she was going to be kicked out of medical school, for failing grades. Her conveniently timed report (of an incident that she appears never to have mentioned to anyone until her academic career was on the line) allowed her to cite Title IX and demand an “accommodation”—namely, that she be allowed to stay in school. Ohio State’s Title IX bureaucracy supported her demand (even writing a letter describing her as a sexual assault victim before any investigation occurred) and the medical school backed down.
For reasons that remain unclear (but seem not too hard to guess), neither the accuser nor OSU’s Title IX bureaucrats told the investigator in the case about the close timing between the expulsion notice and the rape claim. Not that the investigator, Jeff Majarian, did much digging. One of the witnesses mentioned the academic problems, but Majarian didn’t pursue the matter. Nor did he ask the bar where the two had met if there was a videotape of the night of the incident—as a way of checking the accuser’s intoxication levels. And though his questioning of additional witnesses led to some obvious follow-up questions for the accuser, he elected not to re-interview her. Instead, he prepared a report, which served as the factual basis for the university’s disciplinary hearing.
Panelists at this hearing had received special training from Ohio State. They learned, for instance, that they were to use the preponderance of evidence threshold—which OSU described as “50% and a feather”—and therefore didn’t need a “smoking gun” or even “damning evidence.” OSU also told them that sex offenders “are overwhelmingly white males” and “are experts in rationalizing their behavior.” And that there are a lot of them—as many as 57 percent of “college men.”
The hearing was a farce, both because the accused student didn’t know about his accuser’s possible motive to lie, and because OSU refused to allow his expert witness (an Ohio State pharmacology professor who was going to testify about the accuser’s intoxication level) to testify. The accused student was found guilty and expelled.
When he sued, his case wound up in Magistrate Judge Kemp’s courtroom. Testimony from multiple OSU administrators indicated what could best be deemed an indifference to the truth. Some examples:
Q: Am I stating it correctly that fair also means that you want to try to get the right result?
Title IX coordinator Kellie Brennan: We want to get the result that we can based on the information that we have.
Q: [Brennan’s] job is also to make sure the process is fair, right?
Investigator Jeff Majarian: I don’t know.
Q: And Ohio State has an interest in making sure the hearing panel gets it correct, don’t they?
Panel chairman Matthew Page: I think that procedurally we want to ensure that our board members come to the decision they think is fair based on the evidence they considered.
Q: Do you have any understanding as you sit here today about whether you have an obligation to correct a false statement at a hearing panel?
Sexual Violence Support Coordinator Natalie Spiert: I do not know.
Q: [Do you have] an obligation to make sure that the hearing panel gets it right? …
If these, and other assertions, much troubled Magistrate Judge Kemp, it didn’t show—he sided with the university, in a rote opinion suggesting that accused students basically can’t win due process cases. (You can read his opinion here.)
It’s hard to argue that justice was done in the Ohio State case. But if the judge is indifferent to fairness, there’s little an accused student can do.