We have yet another court ruling that a university denied the most basic due process protections to a student accused of sexual assault. For example, the University of Southern California appeared entirely unmotivated and uninterested in determining if stains on clothing of the victim was blood or red paint from a party where “students splattered paint on each other.” What is astonishing is that, while spending little time to guarantee a fair process, the university has continued to litigate this case to try to protect its right to summarily convict accused students. Claremont McKenna College and the University of California-Santa Barbara were previously cited for such due process violations.
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.
In its ruling, the appeals court noted that USC’s Title IX investigator did not even interview “three central witnesses” whose testimony was marked by “inconsistencies” and disputes over whether they saw blood or paint in the accuser’s apartment.
Dr. Kegan Allee served as the Title IX investigator and did an obviously poor job.
[Allee] found by a preponderance of the evidence John knew or should have known Jane was too drunk to consent to sexual activity. In addition, Dr. Allee concluded even if Jane had consented to vaginal sex, she had not consented to anal sex, as evidenced by blood observed in her apartment on the mattress, sheets, and carpeting later that day by Jane and another student.
John contends on appeal he was denied a fair hearing. We agree. Dr. Allee did not interview three central witnesses, including the two witnesses who observed Jane’s apartment after the sexual encounter—one described a large puddle of blood on the mattress and blood on the sheets and carpeting; another saw the apartment earlier that day and did not see any blood. Jane relied on the third witness to help her reconstruct what happened the morning of the incident. Instead, Dr. Allee relied on the summary of the interviews by another Title IX investigator, Marilou Mirkovich. Accordingly, Dr. Allee was not able to assess the credibility of these critical witnesses during the interviews.
USC rules require “[a] fair, thorough, neutral and impartial investigation of the incident.” (Guidebook, § 17.03.D.) Yet, the accused student was denied evidence that could be tested, questions for his accuser, and other protections.
What concerns me is the continued resistance of school officials to affording basic protections like access to evidence or cross examination for accused students. We need to aggressively prosecute these cases of alleged abuse but we can do so without denying basic due process rights to the accused.
Here is the decision: USC Opinion