A former University of California (UC) graduate student accused of sexual misconduct in 2017 has filed a class action lawsuit arguing the UC campus investigation system that substantiated the allegations against him and other students failed to provide them due process.
Another male student who attended Cal State Fullerton has filed a similar class-action lawsuit against the California State University system, the Los Angeles Times reports.
“This class action seeks to clear the records of those who’ve been wrongfully punished by this deeply flawed disciplinary system,” said Los Angeles attorney Mark Hathaway, who represents the UC and Cal State Fullerton students – all identified as “John Does” in court documents.
In the case of the UC student, he said he dated a female student twice, and was then shocked when she accused him of stalking and sexual harassment.
The UC investigation team substantiated the female student’s claims and suspended “Doe” for two years.
Yet another prospective class action lawsuit by students accused of campus sexual misconduct was filed against Michigan State University on July 5.
In that case, “John Doe” was accused of sexually assaulting a date at a fraternity party in February 2018.
According to the suit, Doe said sexual activity between himself and a female student was consensual, but he discovered soon afterward she had accused him of forcing himself on her. The female student reported the alleged sexual assault several days later to the school’s Office of Institutional Equity.
After a campus investigation, Doe was suspended from Michigan State for two years. His attorney, Andrew Miltenberg, who also represented former Columbia University student Paul Nungesser – falsely accused of rape by “mattress girl” Emma Sulkowicz – amended Doe’s complaint and requested class-action status.
Officials of both the UC and Cal State systems say their investigative processes into campus sexual assault charges are fair, reports the Times, and that they have strengthened due process protections as required by the courts and the U.S. Education Department, the latter of which rescinded the Obama-era campus sexual misconduct policies and proposed a new rule.
“Everyone wants accusers to be heard in sexual assault allegations,” retired university administrator Pat Daugherty explained to Breitbart News. “However, the Obama administration’s Title IX guidelines suddenly inserted the federal government into student judicial processes and reduced many of the due process protections that had been in place for the accused.”
Daugherty said the pressure of the new rules was significant and the “emphasis was now on handling each case from the accuser’s point of view, as due process for the accused unfortunately took a back seat.”
She added the class action lawsuit approach “indicates there are many young men who feel they were victimized by the rush to judgment mentality that took over.”
The Times reports Brett Sokolow, president of the Association of Title IX Administrators, referred to the class action suits as a “clever approach” that would allow possibly thousands of students who might be unable to afford hiring their own personal attorneys to still take legal action.
Sokolow said more than 300 students across the United States have filed lawsuits challenging the results of their schools’ Title IX investigations. He added, however, that as many as 20,000 students in the nation may have been disciplined for sexual misconduct.
“If one case succeeds,” he said, according to the Times. “it opens the floodgates for others.”
After announcing the Trump administration would be scrapping the Obama-era policies regarding cases of sexual misconduct on college campuses, Education Secretary Betsy DeVos released a long-awaited proposed Title IX rule in November 2018. The proposed rule called for a “presumption of innocence throughout the grievance process,” as well as “written notice of allegations and an equal opportunity to review all evidence collected.”
The plan would also allow both parties to have the right to cross-examination, and would define sexual harassment as “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school’s education program or activity.”
Alleged incidents of sexual misconduct would only be investigated if they occurred on campus or during a school-sponsored event, according to the proposed rule.
With the Obama-era policy, students accused of sexual misconduct have regularly been denied the ability to cross-examine their accuser and to have access to the alleged evidence against them. The school teams investigating campus sex assault cases have often been referred to as “kangaroo courts.”
Since the Trump administration proposed its new rule, some left-wing organizations and politicians have criticized the emphasis on due process, claiming it would detract from campus safety for accusers, whom they immediately label “survivors” of sexual misconduct.
Last November, the ACLU tweeted, “The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported”:
The proposed rule would make schools less safe for survivors of sexual assault and harassment, when there is already alarmingly high rates of campus sexual assaults and harassment that go unreported.
— ACLU (@ACLU) November 16, 2018
To promote its campus sexual misconduct policy, the Obama administration used a false statistic to create the image of what the ACLU referred to as “alarmingly high rates of campus sexual assaults and harassment.”
Asserting that “1 in 5” women experience sexual assault in college, and repeating that statistic in the mainstream media and on college campuses supported the narrative that women in college were frequently victims of sexual assault.
According to the Bureau of Justice Statistics, however, a division of the Department of Justice, the actual rate of sexual assault on college campuses is 6.1 per 1,000 students, or .03 in five. The rate of rape and sexual assault for non-students is actually 1.2 times higher than for students — 7.6 per 1,000.
It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence.
— ACLU (@ACLU) November 16, 2018
“It promotes an unfair process, inappropriately favoring the accused and letting schools ignore their responsibility under Title IX to respond promptly and fairly to complaints of sexual violence,” the ACLU complained about the Trump administration’s proposed rule. “We will continue to support survivors.”
The ACLU received considerable criticism for its reaction, including a comment from Brooklyn College history professor KC Johnson, who tweeted the ACLU’s response was “mindboggling.”
A mindboggling statement on proposed TIX regs from @aclu. Cross-examination by a lawyer is "inappropriately favoring the accused"? Ensuring both parties have access to training materials and evidence?
Does the ACLU now adopt those positions more broadly?https://t.co/HCeQbt5HBf
— KC Johnson (@kcjohnson9) November 16, 2018
What has happened to ACLU is one of the saddest developments of the Trump era. But there are already groups – such as @TheFIREorg – emerging to replace it as an actual civil liberties group which defends rights regardless of partisan outcomes. Also still great ACLU lawyers remain https://t.co/GVbAWxZxXb
— Glenn Greenwald (@ggreenwald) November 17, 2018
This is reprehensible. The accused deserve due process. Period.
Shame on you ACLU. The kangaroo courts that take place on campus are the very definition of violation of civil liberties.
— Collin Slattery (@CJSlattery) November 16, 2018
“Cross-examination by a lawyer is ‘inappropriately favoring the accused?’” Johnson asked. “Ensuring both parties have access to training materials and evidence? Does the ACLU now adopt those positions more broadly?”