Parents Seek to Bring Due Process to Title IX Sexual Misconduct Cases Following Son’s Plight

Students from James Madison University take part in a rally outside the Education Departme
Ron Edmonds/AP Photo

In what seemed like a scene from Mr. Smith Goes to Washington, the iconic Jimmy Stewart film about a naive new senator taking on corruption, Audrey and Richard McIntosh were on a similar mission when they visited Washington, DC, recently.

The couple shared their story with Breitbart News, a harrowing tale about how their son became one of hundreds who have been accused of violating Title IX.

Their son is a victim of a federal law designed to prevent discrimination based on sex that morphed into a secretive process stacked against those accused of sexual misconduct following Barack Obama’s 2011 “Dear Colleague” letter from the Department of Education sent to educational institutions.

Charges of “dating violence” and sexual assault launched against their son by a former girlfriend while he was a student at Washington University in Missouri. The charges caused his eventual expulsion from the school — a decision made without due process, his parents said.

They also said a report from campus police who were called to the dorm room where their son and girlfriend were located found no evidence of physical violence.

It also eventually led to dashing the young man’s hope of having a career in the U.S. military because he was expelled from Reserve Officers’ Training Course (ROTC) and made to repay a college scholarship he received from the organization.

Family Under Media Scrutiny 

And as if it were not enough for this family to face, the tides turned against Richard and Audrey when they attempted to change state law to put into place due process in Title IX investigations, including allowing those facing sexual misconduct charges to have an attorney and access to case findings.

“We don’t want another family to have to go through this,” Audrey told Breitbart News.

Ironically, it was the parents’ effort to help their son that led to what they said amounted to the university and local media vilifying the whole family.

The story includes Audrey and Richard’s vocations, which allowed them — more easily than most parents — to try to bring change to the Title IX process in Missouri; she is a judge on the state’s Administrative Hearing Commission, and he is a lobbyist who works with members of the State House and Senate.

The next chapter of the story is Washington University sharing confidential information with lawmakers. Then the media claimed that House Bill 573 was crafted and promoted solely to help their son even though his fate was sealed, including the rejection of his appeal of the Title IX decision.

Media reports claimed a retroactive component of the bill, had it become law, would have benefited their son, who by that time had already enrolled in another school.

Local and eventually national media blew up the story, reporting that the McIntoshes had only personal reasons for backing the bill. The Kansas City Star reported:

Had McIntosh’s 2018 amendment been enacted, it would have allowed his son to appeal the result of his Title IX hearing to the state Administrative Hearing Commission, where his mother and McIntosh’s wife, Audrey Hanson McIntosh, is the presiding and managing commissioner.

The initial version of McIntosh’s House bill from this session would have allowed those suspended or expelled for Title IX violations, including those like his son, whose case had already been decided, to appeal their punishments to the same administrative court where McIntosh’s wife sits.

The Associated Press (AP) distributed a story nationwide based on a Freedom of Information Act request that produced emails between Richard and lawmakers. Like the Star, AP claimed the bill was designed to help his son:

The emails, obtained through an open-records request, show that lobbyist Richard McIntosh sent detailed edits last year to legislative staffers writing the House version of the Title IX overhaul. One edit that appears to be from McIntosh recommends adding “specific language allowing decisions prior to this legislation to be reviewed.” That would enable McIntosh’s son to appeal his expulsion to a state panel on which his mother sits.

Legislation Explained

Richard provided the facts for inclusion in this report:

The bill as originally filed contained two distinct and difference aspects related it to the Administrative Hearing Commission’s authority on Title IX cases.The bright line for the application of this authority was for Title IX decisions issued by a university before August 28, 2019 and for Title IX decisions issued after August 28, 2019.  Under the Missouri Constitution, new legislation takes effect August 28 in the year that it was passed.

For Title IX case decisions which were handed down by a university before August 28th, the respondent in a Title IX case could ask the Administrative Hearing Commission to review whether due process was applied in the case and a correct decision was reached based on all available evidence.  The Administrative Hearing Commission was limited to issuing a ruling regarding the propriety of the decision.  This opinion did not have the force and effect of law, so this opinion could not change the decision, discipline or outcome of an existing Title IX case.  It only allowed the respondent to be able to say that an independent third party had reviewed the case and determined that due process was or was not applied in the case. This statutory provision allowed those students whose family did not have $250,000 to spend on a federal lawsuit the ability to at least raise the issue that due process had not been applied and that perhaps the correct decision was not reached.  Because Missouri constitution does not allow retroactivity, the Administrative Hearing Commission opinion was only advisory.

For Title IX case decisions which were handed down by a university after August 28th, either party to the case could ask the Administrative Hearing Commission to review the case and determine if the correct decision was reached based on all evidence and subsequently if due process had been applied in the case.  The Administrative Hearing Commission could render a decision overturning the university’s Title IX decision based on the evidence presented to them or could uphold the decision. Under this provision, the Administrative Hearing Commission’s decision would have the full force and effect of law.  Once again, the Administrative Hearing Commission was a much less expensive option for providing oversight on Title IX decisions reached by a university without the need to go to federal court.

“As the bill language relates to the McIntosh family, in either circumstance, before or after, there was no way for the McIntosh family to bring a case in front of the Administrative Hearing Commission,” Richard said. “First, under the rules of ethics for attorney’s there was no way for Audrey to hear a family members case.”  

“Furthermore, because of her relationship with the other Administrative Hearing Commissioners, they would have to recuse themselves from any case brought in front of the Administrative Hearing Commission related to the McIntosh family,” Richard said.

“The McIntosh family literally has no remedy available to it front of the Administrative Hearing Commission for any type of case, whether it was Title IX or any other decision rendered by an administrative body of Missouri state government,” Richard said. “For instance, if the Department of Revenue issued a finding against a member of the McIntosh family, no one on the Administrative Hearing Commission could hear the case.”

The McIntoshes told Breitbart News that the bill they supported, which never made it past committee, is rendered dead unless or until it or some version of it is introduced in the next state legislation session, which begins in January.

Moreover, the McIntoshes want changes made to the Title IX process to make it more accountable and transparent for all parties.

Thousands Face Title IX Cases

And, in fact, their son’s case is anything but unique.

There is a massive online subscription-based database, Title IX for All, that’s devoted to keeping track of the “1,000 plus” lawsuits filed by respondents in higher education Title IX proceedings.

Nicholas H. Wolfinger,  a professor of Family and Consumer Studies and Adjunct Professor of Sociology at the University of Utah, wrote about his own experience with Title IX:

Much of the emerging backlash concerns false accusations of sexual misconduct. Consider some of the campus rape cases to have received the most media attention over the past decade: the Duke lacrosse players (2006), the University of Virginia assault reported in Rolling Stone (2014), Emma Sulkowicz, the Columbia University “mattress girl” (2012), and the Baylor athletic department sexual assault cover-up scandal (2015-2016).

The Duke lacrosse and Rolling Stone accusations have been incontrovertibly debunked; the Sulkowicz accusation is almost certainly unfounded. Only the Baylor case, in which the football coach, athletic director, and university president were all fired for systematically suppressing rape allegations, actually reflected sexual misconduct. Colleges and universities are themselves contributing to the proliferation of false accusations. Ironically, these false accusations have ensued from a misguided policy intended to protect the interests of rape survivors: the 2011 Department of Education directive known as the “Dear Colleague” letter.

My own Title IX investigation was also largely based on words. In 2016, I was brought up on charges that included, most memorably, telling a few colleagues that I’d proposed to my now ex-wife at a strip club. The complaint also cited various instances of “potty mouth” and bawdy conversation.

Wolfinger concluded his commentary with the same plea as the McIntoshes: “A civilized society has no place for men (and, occasionally, women) who abuse their power by abusing their subordinates. Accusations of sexual misconduct must always be taken seriously. At the same time, anyone who is accused deserves due process, not an internet lynch mob.”

And on Wednesday the Daily Wire reported on an autistic student, Marcus Knight, who was attending Saddleback College in California and was suspended in 2018 for giving a female student a “fist bump” and for taking a selfie with another women:

His mother, Aurora Knight, started a GoFundMe account in an attempt to raise money for legal fees to fight Marcus’ suspension. The suspension ended up being overturned, but the negative marks still appear on his transcript.

As Aurora has said, Marcus never received a fair hearing. The investigator in his case had no formal training (though Title IX training is designed to find students responsible, so formal training likely would not have helped Marcus). No one testified against Marcus, yet he was found responsible.

Marcus has resumed classes at the school but his mother said he has “been robbed of two first years in college” and that Marcus’ “dreams have crashed.”

As for the McIntoshes, their son is now in law school, a career that he may otherwise not have chosen if not for his own traumatic experience.

This may not be the final chapter of the McIntosh story. They have a five-year window to sue Washington University. According to Dean Dohrman, Missouri state representative, he plans to introduce another bill to reform Title IX in the next session.

Audrey said the university and the media failed to present the truth in her son’s case.

“They were making it about our son, not the political conversation about what’s right to do and what’s wrong,” she said.

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