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Blog and Media Roundup - Tuesday, January 2, 2018; News Roundup
Topic Started: Jan 2 2018, 04:57 AM (86 Views)
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https://www.thecollegefix.com/post/40537/

Judge overturns campus rape finding after officials call accused student ‘motherf—er’
Greg Piper - Associate Editor •January 2, 2018

Make sure you hang up before demonstrating your bias

It’s hard to overstate the incompetence of some officials running Title IX investigations in America’s colleges.

Just before Christmas, a judge overturned the University of Southern California’s 2015 sexual-assault finding against an accused student, deeming him the victim of a process that was not “fair, thorough, reliabl[y] neutral and impartial.”

One of the errors made by the private institution? The Title IX coordinator and investigator repeatedly called the male student and his adviser “motherf*ckers” after they forgot to hang up on a call with them.

Oh, and they called the female student accusing him “a catch.”

USC had a very low threshold to cross in order for Los Angeles Superior Court Judge Elizabeth White to wash her hands of the situation.

She could only review whether the school “proceeded without or in excess of jurisdiction, whether there was a fair trial, and whether a prejudicial abuse of discretion occurred” – in this case, where “substantial evidence” does not back the school’s findings.

USC failed miserably. It wasn’t the first time.

An admission that’s not an admission

White describes the relationship between “John Doe” and the female student as “volatile and complicated.”

They exchanged “several hundred” Facebook messages in less than a week as they rehashed a disputed sexual encounter two months earlier, when they were “dating-ish.” They continued sleeping together for a month after the disputed encounter on Oct. 14, 2015.

The female (“Roe”) alternately claimed 1) Doe held her down during sex and refused her verbal pleas to stop 2) she might not have actually told him to stop. Doe claims they “tried” having sex but didn’t actually do it that night.

There are a couple major factual disputes between the two.

Roe claimed Doe’s roommate “knocked a few times” and then entered the room as she was leaving in tears, and gave her “a confused face.” Doe claimed no one knocked and Roe was gone the next morning when he woke.

USC explicitly refused to interview the roommate – the only person who allegedly saw the two on the same night.

Instead, the administration deemed that Doe admitted to sexual assault because he made an ambiguous apology to Roe. She had texted him to make various accusations about his behavior that night, once more blurring the line of whether Doe actually violated her consent or just pressured her to have sex (“you also tried to guilt trip me into feeling bad and having sex”).

Judge White also notes that Roe herself didn’t immediately refer to the encounter as “rape” because she didn’t want to “make it a big deal.” Her own Facebook messages suggest she was accusing Doe because he continued “hooking up” with others, while she wanted them to be exclusive. (Recall this was a “dating-ish” relationship.)

‘Motherf*ckers’: Judge rules USC denied ‘fair and impartial’ Title IX investigation to accused student by The College Fix on Scribd

‘Does that college motherf*cker know who I am?’

Investigator Patrick Noonan interviewed 17 “witnesses,” none of whom witnessed the parties that night, and failed to give “any rationale” for not interviewing Doe’s roommate, who was explicitly suggested by Roe.

In his final investigative report, Noonan left out more than 150 pages of communications with Roe provided by Doe. The supposed investigator also made a rookie mistake: believing that two text messages in the communications had been manipulated because they were in “nonsequential order.”

You can see Judge White’s irritation flare up here: She notes that the texts were arranged that way because of the “computer applications” Doe used to retrieve the messages. Noonan cited these nonsequential texts as a strike against Doe’s credibility.

This is a man paid by USC to investigate felony-level allegations that depend heavily on digital evidence.

When Noonan and Title IX Coordinator Gretchen Dahlinger Means provided the findings to Doe and his adviser in a conference call, “neither party terminated the phone call,” White says.

Means and Noonan kept talking to each other on the hot line:

Means asked, “Who do these motherf*ckers think they are?” and, “Does that college motherf*cker know who I am?” … Both Noonan and Means referred to [Doe] as “motherf*ckers.” … Noonan and Means also described Roe as “a catch” and expressed, “[She is] so cute and intelligent. What was she doing with that (referencing [Doe])?”

Means is paid by USC to ensure compliance with “non-discrimination” mandates.

Lame excuses for not interviewing only alleged witness

USC is actually responsible for California case law on the obligations of private educational institutions in student disciplinary proceedings – it screwed over an accused student in an ambiguous orgy – so Judge White didn’t have to look far for guidance.

She cited an “unacceptable probability of actual bias” against Doe, not only because of the “motherf*ckers” comment by the officials in charge of the investigation, but because Means was also advising the “purportedly neutral” review panel that issued the decision against Doe:

In this case, the review panel did not issue any rationale for “its” determination and, instead, summarily adopted the findings of [Noonan]. … In sum, the panel is merely a proxy for the Title IX office, which actually rendered the underlying decision.

White rebuked the university for having the chutzpah to claim that its system is “comprised of independent decision-makers”:

[T]he Title IX Office is involved in each stage of the decision-making process. … Thus, it is disingenuous to argue that USC’s review process prevents bias from tainting the outcome when Coordinator Means – a person who has expressed vitriol against [Doe] and favoritism toward Roe – is permitted to advise each purported decision maker …

The judge also showed contempt for USC’s explanation for not interviewing Doe’s roommate, the only person who could corroborate a “material disputed fact” on the night in question.

The university said it was “not appropriate” to interview him, then claimed he was “out of the country … and unresponsive” based on Roe’s “uncorroborated claim.” USC never provided records of even its attempts to reach the roommate.

(Interestingly, White suggests USC may have disingenuously cited federal student privacy law to avoid explaining why it didn’t interview the roommate. The law’s author has said it’s massively abused.)

In perhaps her most stinging rebuke of the university, White said Doe’s purported “admissions of wrongdoing” (his ambiguous apology message to Roe) was not remotely a confession. What had Doe actually told Roe? That he was sorry for making her “upset,” “distressing” her, making a “mistake” and maybe for having “crossed a line” physically.

In fact, Doe categorically denied Roe’s claims when she finally accused him in plain words, not her ambiguous guilt-trip language: “I have never said that I sexually assaulted you and I maintain that to this day.”

The judge also rebuked Noonan for claiming Doe had “opportunities” to question his accuser, when the investigator wouldn’t even let Doe “take notes” during his interview – the only opportunity to submit questions for Roe.

Unfortunately for Doe, he’s probably stuck going through the star chamber again. White told the university to “conduct a new fair and impartial investigation.” Given USC’s trip through the California courts in the preceding years, that seems unlikely to pass.

https://www.scribd.com/document/368233925/Motherf*ckers-Judge-rules-USC-denied-fair-and-impartial-Title-IX-investigation-to-accused-student#from_embed
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http://www.berkshireeagle.com/stories/colleges-stand-ground-on-sexual-assault,528362

Colleges stand ground on sexual assault
Trump changes to policies hold little sway in local campuses
Posted Monday, January 1, 2018 5:45 pm
By Patricia LeBoeuf, The Berkshire Eagle

New interim federal guidelines from the Trump administration won't affect how Berkshire County colleges handle sexual misconduct — at least not in the near future.

Officials at Williams College, Berkshire Community College and Massachusetts College of Liberal Arts plan to keep their current policies in the wake of a much-maligned interim Q&A on Campus Sexual Misconduct released by the Department of Education in September.

The guidelines allow sexual misconduct cases to be handled in mediation and give colleges more leeway concerning evidence standards.

Colleges will now be able to utilize a "clear and convincing" evidence standard for sexual misconduct cases. Under Obama-era guidance, colleges were required to utilize the lowest standard of proof, known as "preponderance of the evidence."

The department's press release announcing the new guidelines denounced previous policies, including 2011's "Dear Colleague" letter on campus sexual assault, saying that they created a system that lacked basic elements of due process and failed to ensure fairness on college campuses.

Advocates nationwide have scorned the latest changes, claiming they favor the rights of accused perpetrators of sexual assault over victims and roll back significant advances in the effort to adequately punish those who commit these crimes.

Others have said the changes are necessary in light of a national climate that seeks justice for victims at the expense of basic civil rights for the accused.

In recent years, a flurry of students disciplined for sexual assault have made claims of a lack of due process in civil cases against their former colleges.

Some were successful.

U.S. Secretary of Education Betsy DeVos has also emphasized the need for impartiality in the disciplinary process.

The department's guidelines do not represent a final policy decision.

In the coming months, the department plans to engage in rulemaking on schools' Title IX responsibilities arising from cases of sexual misconduct, according to the department's press release.

"It's a nine-to-18-month rule-making process," said Deborah Cote, vice president for human resources & affirmative action officer at Berkshire Community College. "We're following our policies. We're kind of hanging tight and waiting to see what the final rule-making will result in."

The college already has strong policies concerning sexual misconduct through the Massachusetts Community College Council, she said.

The council includes all 15 community colleges in the state.

"At this point, we have no plans to change our existing policy," said Meg Bossong, director of sexual assault prevention and response at Williams College.

MCLA's sexual violence policy comes from guidance through the state Board of Higher Education.

"Despite what comes out of the Trump administration, that plan's not going to change for us," said Bernadette Alden, director of marketing and communications at MCLA.

'It is our problem'

There's more sexual misconduct in the Berkshire County than some people think, said B Bradburd, director of operations and communications for the Elizabeth Freeman Center.

"Some people think domestic and sexual violence are just a big city problem," he said in an email. "We know from firsthand experience that sexual assault happens here in Berkshire County, that it is our problem."

In 2016, the center provided counseling and advocacy for 230 sexual assault survivors, and received 142 hotline calls related to sexual violence.

"Having worked with so many survivors of sexual assault, I think we have a deep understanding of the impact of trauma on people's lives," Bradburd said.

For survivors of sexual misconduct in college, the social repercussions of the assault can be shattering, he said in the email.

"Both in terms of the day-to-day — how am I going to get to class, how am I going to avoid seeing my perpetrator in the dining hall ... and then sort of the wider culture," he said, "what is the narrative being crafted about being on campus?"

The narrative crafted about campus sexual misconduct encompasses things like whether school administration understands that consent is not based on whether the person assaulted fought back, or if they knew the perpetrator beforehand, he said.

In rural places like Berkshire County, survivors of sexual assault who are attending college can face challenges associated with living everyday life in the same area as the person who assaulted them.

"If you go to school in Williamstown or North Adams or even Pittsfield, there's only so many coffee shops," said Bossong of Williams College. "There's only so many gyms."

Title IX reframed

How colleges handle cases of sexual misconduct is subject to the requirements of Title IX — a federal law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

This includes virtually all public and private colleges in the country.

Discrimination on the basis of sex can include sexual harassment and sexual assault.

Besides higher education, Title IX also applies to approximately 16,500 local school districts and 7,000 postsecondary institutions, as well as charter schools, for-profit schools, libraries, museums and vocational rehabilitation agencies.

Under a federal law passed in 1990 now known as the Clery Act, schools are also required to report campus crime statistics as a condition of participating in federal student aid programs.

These statistics must include reported incidents of sexual assault, dating violence, domestic violence and stalking.

Since the 2011 "Dear Colleague" letter, the focus of Title IX had been on the concrete impacts of campus sexual assaults on educational civil rights, Bossong said.

But with the department's new guidelines, Title IX is being reframed.

"Title IX is being reimagined as a due process [measure] for respondents, not as a measure to halt harassment in educational settings and prevent its recurrence," Bossong said.

Particular elements of the new guidelines also contradict prior guidance, including the 2011 "Dear Colleague" letter and 2001 guidance from the Department of Education under former President George W. Bush, Bossong said.

The 2001 guidance prohibited mediation in sexual assault cases, she said.

But the new guidelines allow for it.

"Mediation is not appropriate for campus sexual violence or harassment cases," Bossong said. "Mediation sends a message that sexual violence or domestic violence or stalking is a misunderstanding."

But for most cases that come before colleges, that's not the case, she said.

When schools have clear and consistent guidelines for handling sexual misconduct, due process is granted to all involved parties, she said.

"You can have clear, transparent, consistent processes, and they're not going to be like the court system," she said. "They're not meant to be like the court system."

Patricia LeBoeuf can be reached at pleboeuf@berkshireeagle.com, at @BE_pleboeuf on Twitter and 413-496-6247.
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