Friday, August 10, 2018

Another Cautionary Tale: This One from a Private University

A few days ago, we posted a cautionary tale from the University of Michigan - a public university - about providing due process in sexual harassment/assault complaint cases.* Here is one closer to home from a private university:

Court Revives Claremont McKenna Student's Appeal Over Sexual Misconduct Suspension

The Second District Court of Appeal held that in a case that turned on believing the accuser's version of conflicting accounts, the process should have included opportunities to hear from the accuser in person or by video conference and to ask her appropriate questions.

By Ross Todd | August 9, 2018 |

A California appellate court has revived the appeal of a Claremont McKenna College student who was suspended for a year for violating the school’s sexual misconduct policy.

The Second District Court of Appeal on Wednesday found that in cases “where the accused student faces a severe penalty and the school’s determination turns on the complaining witness’s credibility,” the fact-finding body should hear directly from the accuser. The court also determined that the accused should have the opportunity to question the accuser, even if only indirectly—an opportunity, wrote Justice Helen Bendix in Wednesday’s 29-page opinion, that “not exist here.”

The decision is the latest California appellate decision to shed light on the difficult task universities face in balancing accused students’ due process rights with concerns about protecting victims and campuses safety. The Second District previously held in 2016 that a University of Southern California football player hadn’t been given sufficient notice of the allegations against him or a fair hearing by the school before being suspended.

Alexander Cote of Scheper Kim & Harris in Los Angeles, who represents the John Doe Claremont McKenna student in the case, said that he was “grateful” that the court accepted his client’s arguments about how finders of fact should handle cases “where credibility is the key issue.”

“I think this opinion gives a lot of guidance to schools going forward so they’re fair to everybody, both for the accused and the accuser,” Cote said.

The events that led to Wednesday’s decision involving a male student who was a freshman at Claremont McKenna in the fall of 2014, referred to in the case as John Doe, and female student who was a freshman at neighboring Scripps College, referred to as Jane Roe. According to the final report from the school’s investigator, the two went back to John’s room one night in October of that year when both were drunk, began kissing and undressed each other. John left at some point to get condoms from outside his resident advisor’s room, but struggled to keep one on. From there, John and Jane’s accounts of the encounter diverge.

After Jane reported John to her school’s Title IX office four months after the encounter, the committee reviewing the case at Claremont accepted her contention that she didn’t consent to have unprotected sex. Committee members also found the fact that Jane sustained injuries during the encounter and sought medical treatment afterward corroborated her testimony that John became rough during sex, and that she had struggled to break free. The committee also found that John’s own words—that Jane didn’t seem “super into it” and that he couldn’t remember her verbally giving consent—weighed against him.

At the court of appeals, John’s lawyers argued that he was denied a fair hearing since neither he nor the Committee asked any Jane questions, and there was no basis for the committee to evaluate her credibility.

“We agree that Jane’s not appearing at the hearing either in person or via videoconference or other means deprived John of a fair hearing where John faced potentially serious consequences and the case against him turned on the Committee’s finding Jane credible,” wrote Bendix, who was joined in her decision by Second District colleagues Victoria Gerrard Chaney and Laurie Zelon.

Apalla Chopra of O’Melveny & Myers, who represents the school in the case, directed a request for comment to a Claremont McKenna spokesman. Peter Hong, associate VP for public affairs and communications at the school, said in an email that the college is currently reviewing the opinion to determine next steps, including a potential appeal to the California Supreme Court.

“Claremont McKenna College is committed to protecting the civil rights of all members of our community, which includes responding appropriately to all complaints of sexual misconduct, and providing all parties involved in such complaints with access to a grievance process that is fair, prompt, and equitable,” Hong said. “The College firmly believes that the grievance process followed in this case met or exceeded relevant legal requirements for expectations under federal and state law.”


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