Friday, May 16, 2014

Another university gets sued because of the "dear colleague" directive

MAY 16, 2014

A Win for an Accused Male at St. Joe's
Posted by KC Johnson

A federal judge has permitted a second denial-of-due process suit against a university to proceed. First it was Xavier--after which the university quickly settled with Dez Wells. Now it's St. Joe's, where district court judge Felipe Restrepo (an Obama appointee) has issued a ruling that narrowed the lawsuit filed by Brian Harris, but has allowed the case to proceed.

The Harris case is one of a number with depressingly similar facts: a student is accused of sexual assault by an accuser who either doesn't go to the police or who authorities deem non-credible. The college nonetheless proceeded forth, seemingly cutting corners along the way, and branded the student a rapist despite what appeared to be sketchy evidence.

Restrepo allowed Harris to continue with his case on three grounds, the most significant of which flows form a Pennsylvania law holding that "'[a]ny person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property' as a result of the seller's deceptive or unlawful actions." Based on Restrepo's ruling, Harris will now have the opportunity to subpoena the university's records regarding how it "investigated" his case. (Restrepo also dismissed St. Joe's claims that the university's investigation should be deemed "quasi-judicial" and therefore immune from a civil suit.) The ruling permitted Harris' defamation claims against St. Joe's and against his accuser, Lindsay Horst, to proceed. And finally, over St. Joe's objections, Restrepo accepted an amicus brief from FIRE.

That said, Restrepo dismissed two of Harris' claims, regarding breach of contract and Title IX violation (though the judge did grant permission to amend the complaint within 20 days). And the manner in which Restrepo ruled provides a reminder of why courts shouldn't cling to the old, pre-2011 reality, and recognize that in an environment in which colleges are strongly pressured to carry out rigged criminal investigations and judicial inquiries, some type of oversight from a real judge is necessary.

Regarding the breach of contract claim, Restrepo conceded that the student handbook is a contract. (This issue varies from district to district; in the Duke case, Judge James Beaty held that Duke had no legal obligation to enforce its student or faculty handbook.) But he held that Harris had not been specific enough in outlining which portions of the handbook St. Joe's violated, and urged Harris to specify in an amended complaint. That said, Restrepo cast strong doubt as to whether Harris could successfully amend this portion of the complaint, given that St. Joe's handbook holds that "subsequent reviewers shall not determine anew whether there was a Community Standards violation" and "the decision made on appeal [by the Vice President for Student Life/Associate Provost ('VPSL')] will be final."

These provisions make perfect sense regarding academic matters. But in an environment in which colleges are functioning as investigators, prosecutors, and judges regarding an allegation that's a crime, a schools should not be allowed to wholly immunize themselves from judicial review for failing to respect their (minimal) due process protections.

Regarding the Title IX claim, Restrepo held that the facts alleged by Harris "do not suggest gender bias as a motivating factor." Yet the entire thrust of sexual assault policy over the last three years is that "gender bias" requires college to minimize due process protections for students accused of sexual assault. If--as the OCR has claimed--an intimate connection exists between gender bias and due process protections, then presumably male students should be allowed to explore the issue (from the other direction) in court.

Regardless of the manner in which he reached his decision, Restrepo has allowed the lawsuit to proceed, and on multiple grounds. Will St. Joe's follows Xavier's path and quickly settle?


There is a pattern here. All these colleges and universities getting sued and forced to settle meanwhile those that crafted this directive and those who made contributions toward it get away without paying a penalty. Meanwhile more men are going to sue more universities and more universities are going to either settle out of court or take their chances with a jury civil trial. Most colleges and universities will of course do the former which will either keep them out of the limelight all together or minimize bad publicity because of it. Like I said the feminists crafted this directive and as usual someone else takes the blame for them. A blame the feminists richly deserve too.

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