Op-Ed: Another University Will Have To Pay For Its Title IX Zealotry
The Obama administration was notable for its disregard of the rule of law in its avid pursuit of politically desirable outcomes. Law professor David Bernstein’s book on that subject, Lawless examined many such instances (see my review here) including the demand by Department of Education officials that colleges and universities scrap due process for accused male students in pursuit of high numbers of punishments for sexual assault.
Now some of the schools that eagerly complied with the Department’s abuse of Title IX (the 1972 law that was written to keep schools that received federal funds from discriminating against women applicants) are feeling strong repercussions, as students use our justice system to right the wrongs done to them.
James Madison University (JMU) is a public university in Virginia’s Shenandoah Valley. It’s probably not a school you would expect rampaging ideology to cause a protracted legal battle, but that’s what happened.
The case is like many others – a “hookup” between college students that ended in anger, with the woman using the Obama-era sexual assault rules for revenge. The man (“John Doe”) met the woman (“Jane Roe”) in August 2014 when both were incoming students at JMU. They had sex one night and exchanged friendly communications for days. The two “hung out” together and had sex again the following week.
One evening thereafter, Roe went to Doe’s room carrying her pillow and blanket, but was shocked to find another woman sitting on Doe’s bed. She left in a huff and a few days later filed charges against Doe for sexual misconduct. She claimed that at the time of their first encounter, she had been too intoxicated to consent to sex. Their hookup therefore amounted to rape and she wanted Doe punished.
In December, a JMU disciplinary panel heard the arguments, looked into the evidence, and decided that Doe was not responsible for any wrongdoing.
That ought to have been the end of the matter, but Ms. Roe was not happy about the outcome, so she asked for another hearing. Rather than saying, “No, the case is closed,” JMU decided to put Doe through what would amount to illegal double jeopardy if this were a case before our criminal courts. It convened another panel, consisting of three professors who listened to new evidence Roe claimed was pertinent, while not permitting Doe to contest any of it.
Despite an abundance of evidence from the first hearing that Roe had not been intoxicated that first night, the second panel decided, as the mantra of the Education Department’s Office for Civil Rights (OCR) then went, that “the accuser should be believed.” It summarily declared that Doe had violated JMU’s policy against sexual assault and ordered that he be suspended from the university for five years. He could then reapply, but only if he had undergone an “education/counseling program.” (As a further rebuke, Doe would be banned from any fraternity activities.)
Doe was not allowed to contest the panel’s decision.
Bear in mind that from 2011 to the end of the Obama administration, the OCR was putting heavy pressure on colleges to implement procedures meant to maximize the number of successful complaints of sexual harassment and assault. They were expected to use pro-accuser policies (such as not allowing the accused to challenge evidence against him and to employ the lowest possible standard of proof for guilt). This case gave JMU an opportunity to shine. Its punishment of Doe was just what the federal overlords in Washington wanted to see.
What the university did not count on was a vigorous counter-attack by the maligned Mr. Doe, who was out of school and bore the stigma of a rapist.
He filed suit against JMU, arguing that it had failed to live up to its self-declared obligation to provide all students with fair and equitable procedures when accused of violating school regulations.
The case was heard by federal judge Elizabeth Dillon, who ruled in 2016 that the university had violated Doe’s rights. (Her decision is available here.) Judge Dillon focused on the second stage of the disciplinary process, writing “There JMU subjected him to a second fact-finding trial but severely limited his ability to defend himself. Specifically, she found:
It did not give him sufficient notice of, or time to respond to, Roe’s new evidence.
It did not provide him with details about the unnamed girl whom Roe’s suitemate accused him of sexually assaulting—an accusation not raised before the hearing board but presented to the appeal board.
It did not allow him to contact Roe’s roommate, whom Roe and her suitemate accused of lying before the hearing panel.
It did not tell him the names of the appeal board’s members.
It did not give him prior notice of the appeal board’s meeting.
It did not permit him to attend the appeal board’s meeting.
Conversely, JMU bent over backwards to accommodate Roe, such as granting her time extensions for submitting new evidence. Judge Dillon therefore refused to dismiss the procedural due process case against JMU in December of 2016 and the following April followed up with an order that Doe be reinstated and his record as a sexual predator be expunged.
But that left the matter of legal costs unresolved. Judge Dillon turned that over to U.S. Magistrate Judge Joel Hoppe, who ruled on January 31, 2018 that JMU must pay over $849,000 in legal expenses Doe incurred.
Writing about the battle over costs in this piece, Heritage Foundation’s Hans von Spakovsky and Sarah Wiliams state, “The same intransigence and refusal to recognize its wrongdoing that was evident in the original case has been present in the court fight over these legal costs. JMU rejected numerous attempts to settle the case despite its plain and obvious mishandling of the sexual-assault claim. Judge Hoppe points out that while JMU claimed Doe’s request was too high because Doe’s attorneys ‘overstaffed the case, were inefficient, and duplicated each other’s work,” JMU did ‘not offer any specific support for this position.’”
There are two reasons why this case matters.
First, it shows that American courts still recognize that due process of law for every accused person is vitally important – even male college students accused of sexual assault.
Second, it provides a warning to those colleges and universities that have decided to stick with the Obama-era procedures that Judge Dillon (and many other legal scholars) found so unfair. Following Education Secretary Betsy DeVos’ announcement that she was rescinding that OCR “guidance” that led colleges to think that they shouldn’t follow due process when it came to male students accused of sexual assault, a number of institutions declared, apparently out of a feeling of righteous resistance to Trump, that they would continue to abide by the old policies.
That resistance is discussed in this article by Ashe Schow, where we read that Yale states that it has “no plans to deviate from the Obama-era policies, after alumni urged campus administrators to resist changes.”
Similarly, Cal State-Northridge said that it would “not waver in our commitment to Title IX and its protections.”
Rhetoric like that sounds wonderful in “progressive” ears, but being unfair to accused men does nothing to protect women on campus. All that such policies accomplish is to encourage the abuse of disciplinary processes by students who want revenge against others who have scorned or angered them.
In a way, we should applaud any college that asserts its independence from Washington. The Department of Education shouldn’t dictate policies to them, on the handling of sexual assault cases or anything else. But schools that feel the need to keep using procedures that are stacked in favor of accusers should think about the potential costs of doing so. The bad publicity and high financial cost to James Madison University is, as educators like to say, “a teachable moment.”