Academia, Constitutional Law, Justice, Politics

California Appellate Court Slams USC For Denying Basic Due Process To Accused Student

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

69 thoughts on “California Appellate Court Slams USC For Denying Basic Due Process To Accused Student”

  4. DEVOS FORCED TO HONOR OBAMA POLICY..

    OF DEBT FORGIVENESS FOR SCAMMED STUDENTS

    The Trump administration said Thursday it will cancel thousands of borrowers’ federal student loans, carrying out an Obama-era policy that Education Secretary Betsy DeVos had fought to kill.

    The move comes as DeVos is being forced to implement a package of regulations that created more protections for student loan borrowers who were affected by a school closure or defrauded by their college.

    A federal judge in September ruled that DeVos’ efforts to stop the 2016 “borrower defense” regulations from taking effect was illegal. And in October, the same judge rejected a bid by for-profit colleges to immediately stop the regulations, clearing the way for them to take effect.

    Education Department officials said Thursday that they will cancel the loans of about 15,000 borrowers who qualified for “closed school” loan discharges but who haven’t yet applied for that benefit. Those student loans total approximately $150 million.

    “This is a good first step, but it’s not good enough,” Sen. Patty Murray (D-Wash.) said in a statement, adding that DeVos should “abandon her attempts to rewrite the borrower defense rule to let for-profit colleges off the hook and instead fully implement the current rule and provide relief to more than 100,000 borrowers who were cheated out of their education and savings.”

    DeVos has said the Obama-era rules are unfair to colleges and taxpayers because they make it too easy for students to have their debt wiped out. She has proposed, but not finalized, a more restrictive policy that would rein in the amount of loan forgiveness that borrowers receive.

    Federal law allows borrowers who attended — or recently withdrew from — a school that closes to cancel their debt, as long as they don’t transfer their credits elsewhere.

    Prior to the 2016 regulations, borrowers had to submit an application to obtain the loan discharge.

    Edited from: “DeVos Cancels $150 Million In Student Loan Debt After Losing Court Battle”

    Today’s POLITICO

    1. RE: ARTICLE ABOVE:

      Education Secretary Betsy DeVos has made no secret of her attempt to rescue the For-Profit College industry that Obama worked to close. Said industry largely preyed on less savvy minority students; using boiler room pressure tactics to make them take out Federally-backed student loans.

      At one point, said industry was such a nuisance that the Pentagon complained that For-Profits were defrauding newly discharged soldiers. One recalls that Trump University was closed and revealed as a fraud in a case where Trump referred to the presiding justice as “that Mexican judge”.

      2. Betsy DeVos has made no secret of her attempt to rescue the For-Profit College industry that Obama worked to close

        Whether he did or not, it’s pretty amusing that Peter Shill would commend BO for attempting to destroy a commercial sector.

        1. Tabby, any scammer can identify as the “commercial sector”. Though your answer here is quite illuminating. The Republican position is that even if these schools are worthless, it’s bad to discourage anything ‘For-Profit’.

          1. Peter Shill thinks Ralph Nader’s the last word in economic analysis.

          2. Peter Hill – I would think those student debts would fall under the purview of the Bankruptcy Court.

            1. I never had a student loan, Paul. But I don’t think they can be dismissed by bankruptcy. Several million people would try that if it was possible.

              1. Yes, it is possible to discharge student loans in bankruptcy. Difficult, but possible.
                —–
                The Brunner Test: Financial Hardship

                Those conditions are reflected in the Brunner test, which is the legal test in all circuit courts, except the 8th circuit and 1st circuit. The 8th circuit uses a totality of circumstances, which is similar to Brunner, while the 1st circuit has yet to declare a standard.

                In plain English, the Brunner standard says:

                the borrower has extenuating circumstances creating a hardship;
                those circumstances are likely to continue for a term of the loan; and
                the borrower has made good faith attempts to repay the loan. (The borrower does not actually have to make payments, but merely attempt to make payments – such as try to find a workable payment plan.)

                There are variances across federal districts, but that’s the basic framework.

                https://www.forbes.com/sites/zackfriedman/2018/06/18/bankruptcy-student-loans/#4652296544f8
                —–
                There is a lot more at the link. Most people simply don’t even try to get them discharged. One good thing Obama did, was to make the discharge process automatic for people on disability. One of my uncle’s has had his loan discharged. Prior to that, he was losing 15% of his meager Social Security checks to repay the loan.

                Prior to Obama, a person could apply, but the process was iffy. Obama made it the default – if you are on SS Disability, then you are discharged. There is a 3 year monitoring period during which my uncle can not take out a new student loan, make more than a certain amount outside of disability, or lose his status as a disabled person. I think he has about 6 months to go.

                Anyway, kudos to Obama for that. And kudos to the last Congress for making the discharge not subject to taxation, as forgiveness of debt.

                Squeeky Fromm
                Girl Reporter

      3. Trump ran a set of real estate seminars, not a degree-granting institution. And, no, student loans were not available to attend his seminars.

        1. Yeah, Tabby, they were just seminars. But the court still determined that the school was a fraud and Trump settled out for $25 million. The school no longer exists.

        2. Look, Peter Shill has a certain quota to meet for whoever he works for. He has to say some unknown number of bad things about Trump each day, whether true or not, even if they are completely off topic.

          So cut him a break, OK. He has to make a living, too. Even if he is an annoying little twerpy shill.

          Squeeky Fromm
          Girl Reporter

  7. People must adapt to the outcomes of freedom. Freedom does not adapt to people; dictatorship does. America, meet the incoherence and hysteria of the 19th amendment – the American national suicide pact. “Crazy Abe” Lincoln introduced America to the nullification of the Constitution and constitutional rights, including, but not limited to, those of secession, private property and Habeas Corpus, beginning the transition to a dictatorial, collectivist, redistributionist welfare state. Subsequent to the 19th amendment, every twinkle in every young man’s eye is a felony with emasculation the proper penalty. An extra added bonus from the 19th is the importation of America’s population as women want to become men not mothers – the American fertility rate has fallen into a “death spiral.” Great! Women got the vote and America committed suicide. The American Founders established a restricted-vote republic for good reason.

    “We gave you a republic, if you can keep it.”

    – Ben Franklin

  8. it goes without saying that vaginal sex can lead to bleeding too either rupture of hymen or intercourse during menses. Anal sex between adults, would not typically lead to bleeding, but it could, whether there was consent or not, depending on the conditions. Those conditions might be triggered without consent but even with it, as well.

  9. I wouldn’t vote DNC if you paid me money, but the GOP in Congress, generally, is as useless as teets on billy goat. They still fund Planned Parenthood, and still fund NPR. NPR, staffed and owned by university and college financing, has not and of course won’t touch this article with a ten foot pole.

    When Obama threatened to withhold university funds unless they eliminated due process for persons accused of rape, NPR and the universities welcomed it with open arms. When their little ideological baby vomits in their face and poops in the pool, they say, “Hey, look at that shiny thing over there….”

    1. Princess Trohar – I am a registered Independent. We are the largest registered group in Arizona. Both parties suck up to me. 😉

  10. What is surprising here??? Religiously-motivated prosecutions are rarely fair, and there is rarely any due process. Heck, when the Italians tried and burned, Bruno, were they interested in due process???
    —-
    Starting in 1593, Bruno was tried for heresy by the Roman Inquisition on charges of denial of several core Catholic doctrines, including eternal damnation, the Trinity, the divinity of Christ, the virginity of Mary, and transubstantiation. Bruno’s pantheism was also a matter of grave concern,[4] as was his teaching of the transmigration of the soul.

    The Inquisition found him guilty, and he was burned at the stake in Rome’s Campo de’ Fiori in 1600. After his death, he gained considerable fame, being particularly celebrated by 19th- and early 20th-century commentators who regarded him as a martyr for science,[5] although historians have debated the extent to which his heresy trial was a response to his astronomical views or to other aspects of his philosophy and theology.[6][7][8][9][10] Bruno’s case is still considered a landmark in the history of free thought and the emerging sciences.[11][12][13]
    ——
    When they threatened to do the same to Galileo, were they interested in the least bit about fairness, or even truth?

    It is the same with the Leftists today. They are interested only in The Narrative, and shutting down all opposing thought as heresies. See the story today about England here.

    Sooo, I ask once again, why does any intelligent person continue to vote for Democrats, the party of these idiocies???

    Squeeky Fromm
    Girl Reporter

    1. Easy answer. Because they are a part of the racket! They get a piece of the pie and don’t like the Republican alternatives

    2. Squeeky,
      ..- I don’t mind you slamming Democrats, but lay off the “Italians”😉😠 ….who weren’t really Italians at that point in history, because the country of Italy did not exist.
      Keep in mind that JT is part Sicilian; and my Mom’s parents immigrated from Calabria, just across the Straights of Messina from Sicily.
      We’ll let it go this time, but in the future…
      ..Watch It.😄😀

  11. My question is: Was the male so drunk he did not remember and had to reconstruct the incident? Does he remember her consenting to the anal sex? And if he was too drunk not to remember, isn’t it rape on her part????? Hmmmm?????????/

    1. Glad to see you back, Paul. L4D wanted me to check on you when you were absent yesterday…..I still have your contact info buried in my email box, and I guess she remembered our exchange when you found my dated Facebook message.
      I probably would not have given her any information if I did contact you….don’t want to chance giving her any specific details she might use to cast/ fine tune additional spells or curses in your direction.

  12. “I have been a long critic of the Obama Administration’s rules forcing schools to strip away due process protections in such cases. ”

    We have been moving toward the left which gradually is reducing our freedoms and our liberties. PC and grievance committees create crimes, punishments and deny due process. We see that all the time here and elsewhere. Proof and the ability to face one’s accuser is being swept out the door by the left. To see a scary representation of what is happening all one has to do is review the Kavanaugh hearings. Those that have totally lost their perspective will continue to believe Kavanaugh was fairly treated but that is the problem the country faces as group PC replaces the law.

  13. I seem to recall in the last year or so that some magazine for teen girls, or maybe it was Cosmo, had an article instructing the girls on the “art” of anal sex. So that they could please the boys and still be virgins, right?
    smh.

        1. Old Moll sure got around! She deserves an Irish Poem!

          Don’t Sweat The Moll Stuff???
          Or, Moll Of The Americas???
          An Irish Poem by Squeeky Fromm

          There once was a moll*, name of Flanders!
          And folks said, “Egads! She philanders!**
          When they called her loose,
          She replied that the goose,
          Should get the same sauce as the ganders!

          Squeeky Fromm
          Girl Reporter

          * a moll is also defined as a prostitute.

          ** What’s interesting is that a philander was originally used to describe a woman. The word means ‘loving of men’ (philo- and ἀνήρ). In renaissance poems and plays, the word was misundertood to mean ‘a loving man’, and was used as a name, Philander, Filandro, etc, for desirable young rakes. Eventually, through this use, philanderer was understood to mean ‘men who act like Philander’, and over time took on a negative connotation.

            1. I have to do it, PaulCS. So many people today are like totally illiterate and stuff. My Goodness, but 3/4 of my stuff would go right over their heads. Only very smart and well read people like you, Mespo, and a few others here would get it.

              But let’s face facts. Isaac, Natacha, PH, Peter Shill, Late4, Bad Anonymous, and others wouldn’t have a clue what it was about. I could have called it “The Moll People”, and they would have thought it had something to do with The Mole People movie. Even though they are nincompoops, they should at least be given a chance to glimpse something higher and better than their regular fare of DNC nonsense.

              Just like that song, “When you say Dylan, they think you’re talking about Dylan Thomas, whoever he was. . .”

              I am working during the Twilight years of our Republic, and soon, the light will fade, and all there will be is these scraps of my poetry for future archaeologists to dig up and try to figure out. Just Think! I could the Rosetta Stone for some future civilization! Little Old me!

              Squeeky Fromm
              Girl Reporter

              PS: You might like this, which I am listening to now:

              1. Squeeky – the very thought that your poetry could be the Rosetta Stone for a future archaeologist scares the begeezus out of me. 🙂

                1. Well, don’t let that be a wedge issue between us!

                  🙂

                  Squeeky Fromm
                  Girl Reporter

                  PS: I promise you that comment is going to fly right over the head of most people here. But, I am going to not do a footnote,just for you, on this one.

    2. I distinctly remember one piece of advice in the article was “don’t trust your farts”.

      Hell, at my age that’s already a rule.
      🙂

  14. That institutions other than those representing the laws of the land-or the laws that apply to everyone, developed by their representatives in the federal and state governments-can have any part in an investigation is contrary to the Constitution and intentions of the founding fathers; regardless if those institutions be religious, educational, or whatever. This is a major step backwards. There is absolutely no way the head of any religious or educational institution is unbiased or qualified to administer the laws.

  15. “We need to aggressively prosecute these cases of alleged abuse but we can do so without denying basic due process rights to the accused.”
    *************
    If you mean the schools, the reply is “no we don’t.” Universities with their ideological blinders are uniquely unqualified to conduct these investigations or adjudicate these situations. How can untrained people been expected to follow anything but their own prejudices. We have a police force and a courthouse to handle crimes which this undoubtedly involves in either sexual abuse or false reporting. Let the damn legal system work and quit punishing males for being males with academics whose only interest is their next paper on the canard of male hegemony.

    1. oh a lot of title IX investigators are lawyers im sure you realize. often women lawyers of course. i hear from a former clerk that she’s been offered quite a handsome salary fresh out of law school by a university for this sort of berth.

      they hire laterally too; usually women; and i have noticed more than a few are women that used to work in insurance defense firms. think about that…..

      AT times there is an unseen push and pull between university PC police and university “Risk avoidance” realists

  16. So here we have it – kangaroo courts run by jackasses. Dr. Allee should be sued for gross negligence and intentional infliction of emotional distress. Her credentials should be rescinded. Her institution should be denied federal funding and disqualified from accepting students with federally backed student loans for two years. The victim of this abomination should be reinstated with an apology and our paint-splattered little tart should be taught to keep her legs together and not get hammered just ‘cause it’s the weekend.

  17. 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.

    Can someone please tell this young man that such behavior is gross and if he insists on it there’s no shortage of strange young men willing to be his butt-buddy for the evening?

    1. “Can someone please tell this young man that such behavior is gross and if he insists on it there’s no shortage of strange young men willing to be his butt-buddy for the evening?”
      ****************
      Doubtful it would help. This crazed monkey behavior is encouraged — even taught —- on college campuses by all manner of sex experts who seem to embody the “if it feels good, do it” mentality of your garden variety, drug-addled 60s hippie. No concern for the consequences of the act or the emotional toll on the socially immature participants, just animalistic gratification using the partner as a disposable automaton. Human emotion overruled by biological lust. This is Kinsey’s brave, old world where primitive jungle behavior passes for enlightened sexuality.

      1. Immature boys and young men learn a “totem pole” of sexual conquest from watching online porn and trading observations and experiences with peers (as a form of male bonding and competition). Unreciprocated fellatio is 1st base and anal sex is 2nd base. Young women had zero say in the establishment of this deviant subculture, yet feel powerless to overturn it.
        The book “Girls and Sex” describes the social minefield teen girls are having to navigate because of this subculture. Liberal federal judges going back 2 generations paved the way for the rise of deviant sexual norms, by stripping the People of their power to defend healthy sexual norms through the instrument of government. Now, as a result, girls as young as 7 or 8 MUST be prepared by responsible parents to fully understand healthy sexual norms, and to become fierce defenders of these norms in situations where no adults are present to supervise boy behavior. And, parents MUST prepare boys starting at an even younger age to understand the difference between stray primate impulses and acceptable healthy sexual behavior, and that online porn teaches certain deviant fantasies that are not to be acted out. Naive innocence is simply no longer an option for raising kids.

        1. How true! There are some kids in my neighborhood, who like to use my kindles to watch kid videos. Imagine my surprise when on one of them I typed in a search for Naked Capitalism, and when I got to the “k”. darned if a bunch of sex videos didn’t show up! So I did a history, and it was Barbie, Barbie, Everleigh, Man woman sex standing up, barbie, barbie, pornhub, Barbie. I was like OMG!!!

          The little girl is like 10, and in 4th grade! I told her “NO MORE OF THIS STUFF!”, and that I would tell her mother if I ever saw it again, and that my kindle would tell me if she ever did it again.

          Only 10 years old. This is where the “porn is a victimless crime” crap plays out. The worst of it is, she probably got a lot of it from her school buds. I bet she is far from an outlier on this.

          Squeeky Fromm
          Girl Reporter

  18. Another piece of evidence, in case you needed one that no matter how problematic the legal profession is, educational administrators are worse. Thomas Sowell once offered that the Anointed commonly confuse expertise and general intelligence and commonly confuse general intelligence with articulateness. These confusions are manifest in the allocation of investigatory and adjudicatory tasks to one Keegan Allee, the official slapped down by the judge. She has no background in policing, investigation, or forensics. However, she’s PLU, so the president or the dean of students or some other official at USC hired her to perform these tasks even though she’s a manifest incompetent.

    USC appears to have let “Dr.” Allee go, as there’s only a cached copy of her site blurb available.

    https://webcache.googleusercontent.com/search?q=cache:XMiMQsJi0CEJ:https://hrdivision.usc.edu/directory/kegan-allee/+&cd=1&hl=en&ct=clnk&gl=us&client=firefox-b-1

    1. The dissertation of “Dr.” Keegan Allee (in sociology, natch), you can see here.

      https://alexandria.ucsb.edu/lib/ark:/48907/f3416v57

      Then there was her master’s thesis at UCSB “Drag kinging and the creation of cybernetworks”.

      Her undergraduate degree, at the University of Florida, was in political science. She had no vocational education whatsoever and her preferred academic subjects commonly have weak operational measures of competence. I don’t think she’s an adept of quantitative methods.

      This is her mentrix:

      http://www.soc.ucsb.edu/faculty/vtaylor/

      They not only hire an incompetent, they hire a social ideologue nurtured in a nest of social ideologues.

  19. Prof. Turley, I think you mean “uninterested” when you write “disinterested.”

    1. Stop being a Dhead. Turley works more hours in one day than you work in a month. If you don’t like the grammar as is, start your own legal blog. He doesn’t edit and we’d not have it any other way.

  20. What happens to students will happen to everyone if authoritarianism takes hold.

    1. It isn’t ‘authoritarianism’. It’s contempt, malice, and negligence. Look at the background of the woman who is responsible. Her point of departure is that masculinity is ‘toxic’. (And that deceitful and borderline behavior by young women is perfectly normal and to be encouraged).

      The Obama administration was promoting this, to be sure. Somehow, the sort of try-every-door noncompliance you see from the higher education apparat whenever something they really want is proscribed by agents of the larger society was not in evidence anywhere. That’s because the Obama administration was pushing on an open door. This is who they are, this is what they do, this is what they want to do.

      The question at hand is why the task of sorting the labor market is entrusted to these people. The other question is why institutional trustees seem never to do a bloody thing about these abuses.

      1. The other question is why institutional trustees seem never to do a bloody thing about these abuses.
        ******************
        Because for the majority of them, their sole qualification is the amount they donate to the school and the governor’s re-election campaign. Their goal is to stay on the board and rock no boats and their motivation is getting to tell all their friends that they are quite special and socially involved. Welcome to appearances for appearances sake America where only fools have principles beyond self-promotion.

        1. That would tell my why UC trustees do nothing. The thing is, trustees at every kind of institution do nothing.

          1. AAAWGO:
            Either graduates of the school, pols or business-types who have no stomach to confront the administration and see their box seats dry up, their faculty cocktail party invites vanish and their tenure end at one term. The Admin. calls the shots; the board sets up the scheme and so long as no dead boy or live girl is found in some President’s bed they’re docile yard pets. Think about it, how many successful people are willing to put it on the line in a volunteer or near-volunteer post?

        2. they’re mostly just rubber stampers and the real deciders are on executive committees. and often boards are packed with a few impressively credentialed stooges that are certain-vote yes men too. usually about 3 people actually make all the important administrative decisions for these billion dollar budget behemoth “nonprofits” with all their fancy fake boards.

          1. the universities are a bunch of fakes. they are for profit money makers for the inside cliques of course. and all the overpaid admin parasites. the funny thing is the associate professors usually don’t get paid dirt for all the work they do. even though they have big mouths. the tenured profs are like made men in the mafia sort of. they are the big cheeses but the associates do most of the work such as it is.

            most of all, the property taxes they evade all over the place are a travesty!

            https://www.chicagotribune.com/news/opinion/commentary/ct-northwestern-university-chicago-property-taxes-big-ten-illinois-private-persp-20170405-story.html

            boy let me tell you there is a gold mine to be made if you can anticipate where the local university is going to expand its premises. often the neighborhoods are horrible and curiously enough some people figure out where the new developments are coming way in advance of them being announced.

            1. a local university had its local expansion plans laid out 20-30 years in advance. I am not speculating about that I remember hearing certain key details about it when I was a kid from insiders, and then eventually that’s precisely what happened including the parts of it that required eminent domain. basically if a big university wants it, they can have it, where local government is concerned.

              now there is often a certain obvious logic to how it happens that anyone could infer over a long term, but when developments are actually started in earnest, is a secret, Or it’s supposed to be. Interesting how some people seem to know that the time is ripe and buy right before the roll-up efforts seriously commence.

              some things that would be “insider trading” at for profit businesses, or “corporate opportunities” locked up by fiduciary duties and NDAs, are oftentimes a lot more sloppy and open for questionable personal exploitation where “nonprofits” like universities are making the moves and their internal functionaries are the insiders milking things

            2. the funny thing is the associate professors usually don’t get paid dirt for all the work they do.

              You’ve been imbibing AAUP propaganda, fed through the Chronicle of Higher Education. Per the Bureau of Labor Statistics The mean annual salary for post-secondary teachers is about $82,000 per year; there are fringes above and beyond that. Per the Digest of Education Statistics, the mean teaching schedule is 70% time and about 1/2 of all post-secondary teacher have f/t schedules. An associate professor would be a tenured faculty member most places and (with few exceptions) full time.

              The Bureau of Labor Statistics does not offer more granular data than that in re the general run of post-secondary teachers. They do do so for those teaching specific subjects. Among those whose annual cash salary is close to the mean would be sociology professors. Median cash salary as we speak is $73,000 per year and the 75th percentile it is $99,000. The former should be close to a starting salary for a f/t assistant professor while the latter near the median for f/t associate professors. The deal for history professors is quite similar, as it is for psychology professors.

              NB, the average employee receives about 20% of his compensation in the form of fringes. The pension system in higher education is quite good.

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