Sixth Circuit Affirms Ruling Against University of Cincinnati And Its Denial Of Due Process To Its Students

download-1download-2The United States Court of Appeals for the Sixth Circuit delivered another stinging rebuke of universities and their denial of basic due process protections to students in sexual assault cases. I have been a long critic of the Obama Administration’s rules forcing schools to strip away due process protections in such cases.  For that reason, I supported the decision of the Trump Administration to rescind the “Dear Colleague” letter issued by the prior administration.  The University of Cincinnati denied a student the right to confrontation — one of the key “reforms” of the Obama Administration demands.

Judge Richard A. Griffin wrote for the unanimous panel that the university proceedings fall far short of the minimal protections afforded under due process. The male student insisted that the sexual relations in his apartment in 2015 were entirely consensual.  He met the women on a dating app and asked to question his accuser.

The woman failed to appear in the proceedings but the school proceeded anyway, It simply read the differing accounts and rule for the accuser.

UC officials denied him that right and the Sixth Circuit found that the school had failed to protect the rights for both students:  “Defendants’ failure to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”  The court further noted:

“John Doe maintains that their sex was consensual; Jane Roe claims that it was not. Importantly, the Committee’s finding of responsibility necessarily credits Roe’s version of events and her credibility. The Title IX Office proffered no other evidence “to sustain the University’s findings and sanctions” apart from Roe’s hearsay statements.  . . . Defendants insist that Roe’s nonappearance did not impact the fairness of the proceedings because Doe still had an opportunity be heard. The ARC panel invited him to “summarize what happened” in his own words, and Doe took advantage of that opportunity. He disputed Roe’s overall interpretation of events and a number of her specific claims. Because plaintiff was able to draw attention to alleged inconsistencies in Roe’s statements, defendants argue that cross examination would have been futile. We disagree. UC assumes cross-examination is of benefit only to Doe. In truth, the opportunity to question a witness and observe her demeanor while being questioned can be just as important to the trier of fact as it is to the accused.”

As I have previously written, these proceedings often make a mockery of due process.  Faced with a heavy-handed threat from the Obama Administration, universities agreed to strip away core protections from their students.  The adjudication in this case was a arbitrary and capricious in its dismissal of fundamental rights of the accused. This is only the latest court to rule against such cases on the very elements muscled through by the Obama Administration. While various advocates have denounced the termination of the Obama letter, they ignore the array of judicial opinions condemning their denial of basic due process.

Here is the case: Doe v. University of Cincinnati 

90 thoughts on “Sixth Circuit Affirms Ruling Against University of Cincinnati And Its Denial Of Due Process To Its Students

  1. I prefer the Scottish version: proven or not proven regarding the prosecutor’s case against the accused.

    However, university disciplinary proceedings are but up to “the preponderance of the evidence”, or should be. However, college students are supposed to be the best young people that society has to offer. And the university’s ultimate penalty is but disenrollment.

    So despite the insults by the Hoi Polloi in comments below I still have no ideas about how to improve such disciplinary proceedings. Fortunately I was only part of one proceedings, against an errant faculty member. That was easier.

    • However, college students are supposed to be the best young people that society has to offer.

      About 43% of each age cohort obtains a baccalaureate degree nowadays. If it were 6% as it was 90 years ago, you’d likely have been out of a job.

      It’s pretty amusing that you fancy ‘the best’ is to be equated with academic performance.

      • The way I put it is, these days you need a BA/BS degree in order to have a good high school education. Or, to have a good 8th grade education from 100 to 150 years ago. As more and more people are persuaded or coerced into going to college, the overall level of education is reduced. Unfortunately, the BA/BS degree is nowadays just considered an entry level employment ticket, and not much else.

        • Again, most people are not earning baccalaureate degrees as we speak. About 65% of all baccalaureate degrees are awarded in vocational subjects, as are 82% of all post-baccalaureate degrees. It’s doubtful the upper half of today’s college graduates are dopier than the college graduates among my contemporaries a generation ago. The degrees they receive may not help them, but they are targeted degrees. Some are in subjects that did not exist even a generation ago (e.g. ‘sports management’), some are in subjects which used to be taught in on-site vocational training (nursing degrees), and some are in subjects which used to be taught in two-year colleges (elementary education degrees). Many degrees are job-market signals.

          People of my grandparents generation generally spoke more grammatical English and read more, but I seriously doubt they were all that educated, just more pointedly educated.

  2. Faced with a heavy-handed threat from the Obama Administration, universities agreed to strip away core protections from their students.

    Non ci credo. The ‘Dear Collegue’ letter gave faculty and administrators the cover to do what they wanted to do anyway They wish to do these things because of their rancid social ideology. The question is why we have collectively allocated the function of sorting the labor market to these twerps.

      • Higher education twits can be quite inventive with the try-every-door noncompliance when it’s something they actually do not wish to do – like eliminate racial preference schemes at the behest of state voters. That they rolled over tells you something.

  3. Considering the nature of the “crime”, records need to be kept of who is accusing whom of rape. The continuous reappearance of certain names on the record would be significant evidence of patterns of criminal behavior.

  4. If any citizen is accused of a crime, the Bill of Rights takes over. The DA with jurisdiction over the crime has responsibility for the entire process. Why would any DA allow these kangaroo tribunals to spoil the evidence that the DA needs to use? The school can only conduct its “disciplinary proceeding” – and thus involve Title IX funds – if the criminal proceeding is concluded, or if the DA OKs it because there’s no prosecution contemplated.

    • No. Here in Washington state no legal action is started until the woman presses charges, if then. This is completely separate from university disciplinary proceedings, which still require the woman to initiate such.

      • Yes, Ingres, there is a separation between a university disciplinary hearing for an enrolled student and the criminal procedure for a criminal defendant. I might add to David’s comment that if there is a significant relationship with the victim, such as being married, dating relationship etc., then Washington’s Domestic Violence Statute (RCW 10,99.030) is activated and it is not necessary for the victim to press charges for an arrest, in essence the state is the victim and will file charges on its own. This started in 1984 and has been modified a few times since. The reason at the time was because it was typical for women to be abused and refuse to press charges, either out of fear or otherwise, and later (sometimes the same night) the police will be called again and she was victimized worse.

  5. To me, it seems an obvious fact of life that a young woman lubricated with a certain amount of alcohol, and a young man equally lubricated (or not!) , will have very different recollections of what happened upon regaining sobriety the next morning. A form of buyer’s remorse? What is “fairness” in this situation?

    Anyway, I’m not sure what the best remedy for this is. Perhaps body cameras so that all dates can be recorded for posterity !

  6. Due Process for Doe is just another example “White Male Privilege”.

    One’s standing before the law should not be impartial but based upon one’s “victimhood” status.

    Everyone knows White Males are the ultimate perpetrators and oppressors and therefore cannot be victims.

    Political Correctness operates on the assumption everything above is true.

    And some SJW or antifa would try to hunt me down and destroy me professionally merely for expressing disagreement with their world view.

      • Come on–it is too!! I had to tell my son since he was white he wasn’t allowed to drag any campus females into the shrubs for a moment of relaxation. I guess he’s white, he’s equal parts jewish, arabic, and franconian (with a little touch of Irish just to keep him fiesty…) . Does that put him on a different “trigger” chart?

        White males are just like Yellowbeard:

        Remember, “feelings,” not “facts.”

      • @DavidBBenson

        Actually, I am Hispanic and if I were a liberal one, you would be kissing my b**t in an attempt suck up.

        So tell me are you a member of the “oppressor” group too?

  7. Universities hold student conduct hearings. These should be quasi – judicial with the rule being the preponderance of the evidence. While it is best for the defendant to face his accuser, this may be overly difficult for the young woman. I have no solution to offer.

    • “Overly difficult?” One minute women are “strong,” equal to men, able to handle anything a man can handle, have legal right to tax payer paid abortion on demand from any age (11, 12) without parental consent. Then suddenly when the victim card fits their goals (see HRC’s pathetic ranting that Mauritanians caused her loss, and middle aged females who voted for Trump because they were too dumb to vote for HRC) they cry crocodile tears, “oh, I’m so weak and vulnerable, I am in soooo much pain….”

      Give me a stinkin’ break! Which one is it?

      • “Give me a stinkin’ break! Which one is it?”

        The one that satisfies their tribal instincts and the instincts of divide and conquer. There is no fundamental principle behind what David and his ilk stand for.

    • The solution is one you refuse to acknowledge: do not delegate to faculty or administrators any discretion of this sort because they are biased and incompetent.

      • Schools have always, and will always, have to employ some kind of process when one student alleges harmful misconduct on the part of another student in order to determine if protective steps are required. Requiring a rape victim, male or female, to continue living in a dorm room next to the perpetrator during the year or more that criminal proceedings may go on is not a reasonable option. The problem is that they don’t just determine what, if any, protective measures may be appropriate under the circumstances (with the least impact on the academic programs of both) and instead purport to determine guilt and impose disciplinary action which may have life-changing impacts.

        • Schools have always, and will always, have to employ some kind of process when one student alleges harmful misconduct on the part of another student in order to determine if protective steps are required.

          What is alleged are common crimes. The dean of students and faculty members have no particular competence in that area. As for internal investigations, you have your own security forces and outside counsel. One thing you should never do is involve faculty in the process. It’s gratuitous to begin with and as an occupational group they’re bereft of sense.

        • Requiring a rape victim, male or female, to continue living in a dorm room next to the perpetrator during the year or more that criminal proceedings may go on is not a reasonable option.

          The only people imposing such a requirement would be the dean of students and his minions. If students want to live off campus, that should be their prerogative.

            • They make no attempt to act ‘in loco parentis’ unless it’s to contain client populations the faculty despises, like fraternity brothers.

              Do you ever get tired of being a fraud?

          • So two students are in campus housing for which they have paid dearly. They live on the same floor, using the same elevators, stairs, hallways and bathrooms. Student A reports to law enforcement and the school that Student B violently raped her in a stairwell, and is cooperating with law enforcement. As the school, what do you do. It sounds like in your version the school takes the position that it’s not our problem, status quo unless and until Student B is convicted? In which case, Student A can drop out, spend another $15,000 (that he or she may not have) to move elsewhere, or continue to share the same elevators, hallways and bathrooms with Student B while attempting to deal with the aftermath and continue his or her studies. In the meantime, the school is exposed to landlord type liability if it does nothing to investigate and determine whether Student B constitutes a known hazard for criminal activity harming other tenants/students.

            • So two students are in campus housing for which they have paid dearly. T

              Remit the charges to the student who wishes to move out. This isn’t that difficult.

              • But then there has to be some determination that doing so is justified, or just allow anyone student to allege misconduct on the part of another to break his or her housing contract. Most schools would find that unacceptable. So, once again, the school requires some evaluation/decision as to the merit of the allegations.

                • No there doesn’t. She wants to move out. We get it. You’re a dean of students employee who reads procedures manuals but doesn’t have much problem-solving ability.

                  • Generally universities don’t permit students to get a refund because they want to move out. While I am not familiar with the economics of housing and feeding students, but expect they rely on certainty and would not welcome changing to a system that let students move out with a refund at any time.

  8. Why are universities even holding such hearings. When ‘victims’ allege that they have been criminally assaulted, the investigation should be done by the police and prosecutors offices. Hearings should be in a court of law.

    • Yea, why is that? Darren has explained how it works and I just don’t get it. At my alma mater, campus security was just there to deter crime and write me a parking ticket when I would park too long at a loading dock to unload an art project. Although, said alma mater did “clean” a shotgun murder scene in the tiny town. All they said to the state police was “ahhhh, we went ahead and cleaned it up.” Something sounds a little amiss there.

    • Exactly, SierraRose. Rape is a crime. If the guy is convicted, then the school can kick him out. Until then it’s not their circus or their monkeys.

      • So during the rest of the academic year, while the criminal charges grind thought the process, you just leave the alleged perpetrator living across the hall and sharing the bathroom with the alleged victim? No matter how strong the evidence or great the harm done? A school will always have to have some way of dealing with claims that one student is harming, or poses a substantial risk of harming, another. How do you think that process should look?

        • Richard, what do you think happens if a neighbor in an apartment building kills another neighbor, is arrested and then let out on bail?

          Does the school have the ability to make accomodations? Yes, maybe they can move that female to another location, but what do they do about the other females? Do we change our legal system from ‘innocent until proven guilty’ to ‘guilty until proven innocent’ like is seen in some countries?

          • Typically, the landlord will be liable if it doesn’t take reasonable steps to protect its tenants against a known hazard of criminal activity. Certainly, if the neighbor went back to the apartment building and harmed someone else, a lawsuit would be filed against the landlord. The potential for winning such a suit would depend on the state. If evicting the alleged perpetrator was not barred in some way, I would expect the landlord would probably take action to evict as quickly as possible. Similarly, if employee A asserts he was raped by employee B, the chances are very good that employee B will be fired–quite possibly without much of an investigation or determination as to the merits of the claim. In a rape case, the situation is more complicated than your hypothetical murder because the alleged victim is not dead and so potentially subject to ongoing harm by continuing contact with the perpetrator. It’s a matter of any large organization having to have some method to resolve disputes when one member has harmed another such that continuing contact is harmful. Inevitably a determination of fault is part of the decision making process in response to such claims, whether formal or informal. I don’t believe that stripping protections from the accused is the answer, but ignoring the claims isn’t an answer either.

            • Similarly, if employee A asserts he was raped by employee B, the chances are very good that employee B will be fired–quite possibly without much of an investigation or determination as to the merits of the claim.

              You will be hard put to find a case where an employee of a commercial company files criminal charges of this sort against one of her co-workers. In any case, the employee is an employee, not a customer who has pre-paid for services contracted.

            • “Typically, the landlord will be liable if it doesn’t take reasonable steps to protect its tenants against a known hazard of criminal activity.”

              Really Richard? The assumed rapist except for the accusation is presumed innocent until proven guilty. If he is renting an apartment and has done nothing that would otherwise have him evicted then what is the landlord to do? Different states will have different laws regarding landlord tennant situations, but can the landlord legally break his lease? Is the landlord forced to put a policeman at his door. I don’t think so and I don’t think the landlord is liable.

              Let us say the landlord made it impossible for the tenant with a lease to remain in that apartment and the supposed rapist was found innocent, don’t you think then the renter would have a legitimate suit against the landlord??

              • Richard maybe thinking of Connie Francis’ suit contra Howard Johnson’s. Your landlord is not a hotelier with a security staff (and defective locks on the doors).

              • While states differ, in some a landlord has an obligation to take reasonable steps to protect tenants once upon notice of criminal activity in and around the building. Whether notice was sufficient to invoke that duty depends on the circumstances. However, where such a duty exists, a landlord would be required to act reasonably in obtaining information and determining whether an alleged perpetrator’s presence on the property constitutes a known hazard to the tenants. The need to make these decisions does not wait for the outcome of criminal proceedings that may never come. The easiest decision for an employer or landlord who is not bound by law or contract is to kick out the alleged perpetrator without further analysis and thereby assuming guilt. That is hardly an appealing result.

                • An accusation doesn’t make something criminal, Richard. If the alleged criminal based on an accusation was arrested and released on bail never created a problem what is the justification for evicting that individual assuming that is your solution?

                  What is the landlord to do and what is he able to do? All tenants are potential criminals so anyone can make any claim they want. I want to hear you expand on what you are trying to say recognizing a legal landord tenant contract and the lack of basis for eviction since the person is innocent until proven guilty.

                  • What I am saying is that a landlord, like a school or other organization, is often in a situation where it must make some determination as to whether or a claim of misconduct by one person against another has sufficient merit that action is required. There are many circumstances under which it would be impossible or legally very risky to do nothing pending the outcome of criminal proceedings, if any. That is the problem that schools, like other types of businesses and institutions struggle with. The issue is more complicated for universities because they are often state institutions (which limits options) and involve a substantial investment of time and money on the part of the student to take part in the program (not to mention the lost opportunities as a student can generally only accept admittance and start classes at one school). There is also the fact that an action for eviction on the grounds that someone has committed a crime does not depend on the outcome of a criminal trial. Eviction proceedings can be instigated based on the landlords own perception (based on his observations or the reports of others) that a crime has been committed. Certainly, that assertion may be challenged within the eviction proceeding if the tenant contests. However, that does not excuse the landlord from his legal obligation to act reasonably in response to a report that one tenant has harmed another, and if acting reasonably requires that he instigate eviction proceedings, he may be liable for failing to do so. “I didn’t do anything because a jury has not convicted the alleged perpetrator” is quite likely to be an ineffective defense against liability.

                    • What I am saying is that a landlord, like a school or other organization, is often in a situation where it must make some determination as to whether or a claim of misconduct by one person against another has sufficient merit that action is required.

                      No, Richard. Your boss put that in the procedures manual. It’s not some law of nature.

                      Landlords are bound by contract law and landlord-tenant law. Their obligations are specified there and you’ll be hard put to find a law which requires they convene a private disciplinary panel unless some sort of arbitration is provided for in the lease.

                      It doesn’t seem to occur to you that landlords rent month-to-month quite commonly. There’s nothing to prevent college housing apparatchiks from adopting similar policies. You have to make an actuarial calculation of your income stream rather than assuming it’s locked-in in September. The inconvenience of minor month-to-month flux in rental income is a piss poor excuse for convening incompetent and biased faculty disciplinary panels.

                    • “What I am saying is that a landlord, like a school ”

                      Richard a landlord is NOT like a school. Landlords don’t have that discretion. They live within the four corners of their contract and anything outside of that opens them to a law suit.

                      “Eviction proceedings can be instigated based on the landlords own perception (based on his observations or the reports of others) that a crime has been committed.”

                      What law says that? There has to be some modicum of proof. The “landlords own perception” is the landord’s perception not anyone else’s. What happens if the perception of the jury or judge is different than the landlord?

                      Let us take the case that is under discussion but move it to a private apartment building. The lady in 1A says she was raped by the man in 1B. Until that claim was made that man was the perfect tenant and no one in the building nor the landlord had any reason to call for eviction.

                      You are now the landlord. Tell us what you are going to do and how. Then tell us what the results might be.

                    • Eviction proceedings can be pretty cumbersome. Richard started this subthread contending something had to be done with dispatch for the suffering female tenant.

                  • As one example, a form instruction given to juries in California states “…To prove a claim for landlord liability for the negligent or intentional criminal conduct of others, a tenant must show that the landlord (1) knew or should have known about potentially dangerous criminal activity and (2) failed to take reasonable steps to prevent harm.” The lack of a criminal conviction does not eliminate the duty to act. Case law in some states imposes similar liability for on-campus criminal activity. A criminal conviction, or lack thereof, may be part of the evidence but does not determine the obligations. Separately, a school must determine whether to issue a Clery warning, and if it does, what information should be included. All of this takes place long before criminal proceedings are completed, if they are ever begun. You can argue the law should be different, but institutions have to address the current state of the law. Without a process for determining the merit in claims, institutions are likely to take the steps that best protect them from liability. In the case of private universities not bound by constitutional due process requirements, as in basic month to month rental situations, the easiest course is to get rid of the alleged perpetrator and avoid the problem. That is hardly fair to the accused. As to public entities, administrative hearings and investigations are a common feature in almost any department. Whether it is employment issues, code violations and fines, school expulsions, dangerous animal issues, bid protests, zoning challenges, the process of gathering evidence and holding administrative hearings to satisfy due process is a common part of any public business in this country.

                    • Richard, thanks for the long non-response. Using the case in question an alleged rape “What is the landlord to do and what is he able to do?”

                      That is the question. Of course the state can go after landlords and accuse them of all sorts of things and any individual has a right to sue landlords while juries sometimes provide awards that are crazy… What is the landlord to do and what is he able to do?

                      Stop with all the rhetoric and let us hear some common sense answers.

                    • That is the question that everyone is grappling with. I don’t claim to have the answer. I was responding to the idea that schools should basically ignore the allegation unless and until criminal proceedings result in a conviction. That is not an option under existing law, even without the Obama administration guidance letters.

    • There’s a place for extrajudicial arbitration when disputes between parties are minor and don’t involve violence. But rape and sexual assault are violent acts.

      If a woman is sexually assaulted, why does she feel justice is served by merely kicking the assailant out of school? He’s free to potentially sexually assault other women. Why doesn’t that weigh on her conscious?

      Using extrajudicial proceedings to punish accused rapists devalues the crime. They are effectively sending the message that rape isn’t worth prosecuting in the criminal justice system, so we’ll set up a kangaroo kourt and kick rapists out of school and call that justice.

      • Rape and murder laws are created by the state to significantly secure society’s well being. It is my understanding that a prosecutor, though rarely done, may prosecute a case based solely on evidence available even if the person’s involved choose not to be involved. Therefore, I don’t see how such charges can be managed outside of the criminal court system even if one doesn’t consider due process.

  9. To anyone who gives credit to Jesus Obama because he taught the Constitution at U, I quote this Court Ruling as proof that Obama either does not know or care or both, what the Constitution says.

    Female scholars and lawyers decry Trump’s overturning Obama’s extortion of Universities removing Constitutional rights of men accused of sexual violence. I say to them, if you don’t like Constitutional protections, then debate and petition to remove the protections legally by changing the Constitution. Don’t defend illegal removal of protections by telling audiences that it’s a good idea because it makes women feel safer and might stop future crimes.

    Frankly, I’m sick to death of Democrat Progressives appealing to fear and emotion because they have no sensible, intelligent, legal argument defending their ideas which are dumber than dirt, like this one from Jesus Obama.

  10. Many schools have announced they are sticking to the Obama rules. And all sorts of politicians who should know better are decrying this

    Dianne Feinstein: “Sec. DeVos is putting rights of the accused above those of sexual assault victims. Absolutely unconscionable.”

    The damage has been done and will take a long time and many successful lawsuits to recover from.

    • Is this the same Feinstein who said there’s no evidence of President Trump and collusion with the Russians but we have rumors and newspaper stories. Very credible woman, NOT!

    • I have made an argument for many years that people need to separate the notion of criminal conviction and “fairness”. Our system is one where it is the burden of the state to prove guilt and whether or not the person accused actually committed the criminal act or omission is in one sense irrelevant. If the state failed to prove guilt the accused must be declared not guilty. That is not to say there can not be a civil remedy available to any victim.

      As for Senator Feinstein and most of her cohorts they would be wise not to throw due process under the bus. Of all people they might be one of those who will eventually need it most.

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