Beruflich Dokumente
Kultur Dokumente
23 H. Campus Sex Police and Lack of Due Process in Title IX Cases. .......... 15
24
PROCEDURAL BACKGROUND ................................................................... 16
25
A. Summary of UC Irvine Title IX Investigation and Adjudication
26
Policies. .................................................................................................. 16
27
B. UC Irvine Title IX Investigators. ........................................................... 18
28
1. Single Investigator Model. .......................................................... 20
AMENDED PETITION FOR WRIT OF MANDAMUS
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2. Appeal from Investigators Opinion. .......................................... 21
1
2 3. Appeal Hearing. .......................................................................... 22
19 JKH Enters., Inc. v. Dept of Indus. Rels. (2006) 142 Cal.App.4th 1046 .................... 31
3 United States v. Recio (9th Cir. 2004) 371 F.3d 1093 ................................................. 33
4
Statutes
5 20 U.S.C. 1092 ............................................................................................................ 7
6 20 U.S.C. 1681-1688 ................................................................................................. 4
7 5 U.S.C. 556(d) ............................................................................................................ 6
8 Cal. Const., art. VI, 10 ................................................................................................. 2
9
Code Civ. Proc. 1021.5 ............................................................................................. 34
10
Code Civ. Proc. 1084................................................................................................... 2
11
Code Civ. Proc. 1085............................................................................................. 2, 30
12
Code Civ. Proc. 1094.5 ........................................................................................... 2, 3
13
14 Code Civ. Proc. 395..................................................................................................... 3
24 standard for sexual activity if the institution desired to remain eligible to receive state
25 funds for student financial assistance. (Cal. Educ. Code 67386(a).) This policy is
27
30
28 Keven de Len and Hannah-Beth Jackson, Why We Made Yes Means Yes California Law,
Washington Post, Oct. 13, 2015, https//www.washingtonpost.com/news/in-
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 28. The statute also provides that an accused students belief that the accuser
2 consented to sexual activity will not provide a defense if [t]he accused did not take
3 reasonable steps, in the circumstances known to the accused at the time, to ascertain
4 whether the [accuser] affirmatively consented. Id.(a)(2)(B).
5 E. Internal and External Pressure on Colleges and Universities.
6 29. One federal court recently held that [a]ccused students are entitled to have their
7 cases decided on the merits . . . and not according to the application of unfair
8 generalizations or stereotypes because of social or other pressures to reach a certain
9 result. (Doe v. Brandeis Univ. (D. Mass. 2016) 2016 WL 1274533, at *37.) This
10 recognition of the effect of outside pressures on campus administrators is crucial in order
11 to understand why the regulatory environment often plays a role in campus sexual assault
12 proceedings where the accused student is invariably male.
13 30. The role of OCR is paramount. The April 2011 Dear Colleague Letter contains
14 an explicit threat to colleges and universities:
15
When a recipient does not come into compliance voluntarily,
16 OCR may initiate proceedings to withdraw Federal funding by
the Department or refer the case to the U.S. Department of
17 Justice for litigation. Dear Colleague Letter at p. 16.
18 31. This portion of the Dear Colleague Letter has been described as the first
19 warning shot that OCR intended to punish those schools that failed to handle sexual
20 assault proceedings as OCR wanted, and the head of OCR has made clear that she will
22 32. In January of 2014, the White House put further pressure on colleges and
23 universities to prevent and to police sexual violence on their campuses by creating a task
24 force of senior administration officials, including the U.S. Attorney General and the
25 secretaries of the Departments of Education, Health and Human Services and Interior, to
26
27 theory/wp/2015/10/13/why-we-made-yes-means-yes-california-law/?utmterm=.0cc0af651234.
31
NPR, How Sexual Assaults Came to Command New Attention (Aug. 13, 2014),
28 http://www.npr.org/2014/08/12/339822696/how-campus-sexual-assaults-came-to-command-
new-attention.
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 coordinate federal enforcement efforts. 32 According to The Second Report of the White
2 House Task Force to Protect Students from Sexual Assault issued on January 5, 2017,
3 colleges and universities have a responsibility to protect the rights of accused students
4 and provide a balanced and fair process:
5
6 The procedures schools use to resolve complaints of sexual
assault must be fair so that everyone complainants,
7 respondents, and the entire school community is granted their
right to nondiscrimination and can have confidence in the
8 resolution. A balanced and fair process that provides the same
opportunities for both parties will lead to sound and reasonable
9 decisions. Schools must strike the correct balance between the
rights of the accused and the rights of everyone else on campus,
10 including the complainant and every other student who might
be at risk of harm. Properly designed procedures help ensure
11 that everyones rights are respected. They are important in
creating an academic community that respects the well-being
12 of all students and works for everyone.
13 (Second Task Force Report (January 5, 2017) at p. 16)
14
15 33. In February 2014, Catherine E. Lhamon, the Assistant Secretary of Education
16 who heads the OCR, told college officials attending a conference at the University of
17 Virginia that schools need to make radical change. According to the Chronicle of
18 Higher Education, college presidents suggested afterward that there were crisp marching
19 orders from Washington. 33 The Chronicle of Higher Education noted that Colleges
20 face increasing pressure from survivors and the federal government to improve the
21 campus climate. 34 In the same article, the Chronicle noted that different standards were
23 responsibilities, if a female student alleges sexual assault by a male student after heavy
24
32
25 Jackie Calmes, Obama Seeks to Raise Awareness of Rape on Campus (January 22, 2014)
New York Times; Jason Felch and Larry Gordon, Federal Task Force to Target Campus Sexual
26 Assaults (January 22, 2014) Los Angeles Times.
33
27 Colleges Are Reminded of Federal Eye on Handling of Sexual-Assault Cases, Chronicle of
Higher Education, February 11, 2014.
34
28 Presumed Guilty: College men accused of rape say the scales are tipped against them,
Chronicle of Higher Education, September 1, 2014.
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 drinking, he may be suspended or expelled, even if she appeared to be a willing
2 participant and never said no. That is because in heterosexual cases, colleges typically see
3 the male student as the one physically able to initiate sex, and therefore responsible for
4 gaining the womans consent.
5 34. According to the Chronicle of Higher Education Colleges face increasing
6 pressure from survivors and the federal government to improve the campus climate. 35
7 The University of Maines dean of students has stated that, in the face of such pressure,
8 [s]ome rush to judgment is inevitable. 36 Institutions fear of an OCR investigation and
9 the loss of funding gives OCR considerable leverage and allows OCR to set standards for
10 sexual assault proceedings on nearly all college campuses.
11 35. There is non-governmental pressure as well. Victims advocacy groups have
12 made far more noise than groups advocating the rights of the accused and have, to date,
13 largely controlled the public debate. Again, there are financial considerations here. If a
14 school is perceived as being on the wrong side of the campus rape culture issuesuch
15 as at Stanford, Occidental, and the University of Virginiaapplications can be impacted,
16 alumni and donor giving can slow, reputations can experience harm, and the school
17 suffers. The bottom line is that in this highly politically-charged environment, a schools
18 safer course is to find accused students guilty when charged with sexual assault.
19 F. The Stanford Swimmer Case.
20 36. Another event of significance occurred after the reported incident, but before
21 Jane Roe made her Title IX report, on June 2, 2016, a Santa Clara County Superior Court
22 judge sentenced Brock Turnerthe Stanford swimmerto six months in the county
23 jail after his conviction on three counts of felony sexual assault. There was immediate
24
25
35
Chron. of Higher Education, Presumed Guilty: College Men Accused of Rape Say the
26 Scales Are Tipped Against Them (Sept. 1, 2014), http://chronical.com/article/Presumed-
27 Guilty/1489529/.
36
NPR, Some Accused of Sexual Assault on Campus Say System Works Against Them (Sept.
28 3, 2014), http://www.npr.org/2014/09/03/345312997/some-accused-of-campus-assault-say-the-
system-works-against-them.
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 local 37 and nationwide 38 public criticism of the sentence, and the judge was accused of
2 judicial bias in favor of male and class privilege, leading to campaigns for his recall or
3 resignation. A CNN anchor spent most of an hour reading the statement made by the
4 victim at the sentencing hearing. 39
5 G. Wrongful Reports Not Uncommon.
6 37. Not surprisingly, cases of false and wrongful sexual misconduct allegations have
7 been reported, such as Rolling Stones article on Jackie, an alleged rape victim at the
8 University of Virginia. 40 Also discredited, Columbia University student Emma
9 Sulkowicz, who spent her final year at Columbia toting a mattress to protest the
10 universitys supposed failure to punish her alleged rapist. 41 Ms. Sulkowicz even became
11 something of a spokesperson for rape victims and was invited to attend the State of the
12 Union address with Senator Kirsten Gillibrand (D-New York). Then there are the
13 discredited claims of Erica Kinsman and of Kamilah Willingham, who had been featured
14
15
37
16 E.g., Katy Murphy, Light Sentence in Stanford Sexual Assault Causes Outrage, Mercury
News, June 6, 2016, http://www.mercurynews.com/2016/06/06/light-sentence-in-stanford-
17 sexual-assault-causes-outrage/.
38
E.g., Liam Stack, Light Sentence for Brock Turner in Stanford Rape Case Draws Outrage,
18
N.Y. Times, June 6, 2016, http://www.nytimes.com/2016/06/07/us/outrage-in-stanford-rape-
19 caase-over-dueling-statements-of-victim-and-attackers-father.
39
Id.
20 40
A Rape on Campus by Sabrina Erdely was published in the December 4, 2014 issue of
21 Rolling Stone. The article has since been retracted by the publisher. After other journalists
investigated the articles claims and found significant discrepancies, Rolling Stone issued
22 multiple apologies for the story. Columbia Journalism Review featured the article in The Worst
Journalism of 2014.
23 41
Emma Sulkowicz waited seven months to report her allegations to Columbia University.
24 After investigation by the university and law enforcement, Paul Nungesser, the accused student,
was cleared of the charges. Ms. Sulkowicz tried to get other women to accuse Mr. Nungesser of
25 sexual assault, but Columbia University found him not responsible for those claims as well. On
April 23, 2015, Mr. Nungesser sued Columbia University for being complicit in allowing the
26 harassment from his accuser, which significantly damaged, if not effectively destroyed Paul
27 Nungessers college experience, his reputation, his emotional well-being and his future career
prospects. The lawsuit includes dozens of Facebook messages between the two former friends
28 and many declarations of Ms. Sulkowiczs love for Mr. Nungesser before and after the alleged
rape.
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 in the movie, The Hunting Ground. 42 In An Open Letter to Higher Education about
2 Sexual Violence from Brett A. Sokolow, Esq. and The NCHERM Group Partners, dated
3 May 27, 2014, Mr. Sokolow provides examples of sexual misconduct cases where the
4 college or university is holding the male student accountable in spite of the evidenceor
5 the lack thereofbecause they think they are supposed to, and that doing so is what
6 OCR wants. 43 Finally, numerous rights organizations have spoken out on the issue,
7 including the Foundation for Individual Freedom in Education, https://www.thefire.org/,
8 the National Coalition For Men Carolinas (NCFMC), http://www.ncfmcarolinas.com/,
9 Stop Abusive and Violent Environments (SAVE) http://www.saveservices.org/, and
10 twenty-eight Harvard Law School faculty members asserting that new rules violate the
11 due process rights of the accused. 44
12
H. Campus Sex Police and Lack of Due Process in Title IX Cases.
13
38. The pressure is so great on colleges and universities that the NCHERM Group
14
has issued their 2017 White Paper, referring to the current state of campus Title IX
15
investigations as Due Process and The Sex Police. NCHERM points out to college and
16
university Title IX personnel:
17
Maybe you wound up in this role as the result of political
18 pressures real or imagined that make you feel like you need
19 to be policing student sexual mores. Or, for some of you, you
took the 2011 DCL [Dear Colleague Letter] as a license to
20 become the sex police that you always wanted to be. Or, maybe
it has been a gradual and inadvertent shift for you. For
21
42
22 See, Ivan B. K. Levingston, Film The Hunting Ground Misrepresents Harvard Sexual
Assault Statistics (March 26, 2015), The Harvard Crimson; Emily Yoff, How The Hunting
23 Ground Blurs the Truth, (June 1, 2015) Slate; Asche Schow, The continuing collapse of 'The
24 Hunting Ground,' a campus sexual assault propaganda film, (June 3, 2015) Washington
Examiner.
43
25 The NCHERM Group, the largest higher education specific law practice in the country, has
worked with 3,000 higher education clients in the past 17 years, and frequently represents
26 universities being investigated by the Department of Education, Office for Civil Rights (OCR).
27 The NCHERM Group are the founders of ATIXA, a membership association of more than 1,400
campus Title IX coordinators and investigators, that produces training materials and seminars,
28 publications, and conferences.
44
Rethink Harvard's Sexual Harassment Policy (Oct. 15, 2014), The Boston Globe.
AMENDED PETITION FOR WRIT OF MANDAMUS
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whatever reason, if you have become the sex police, we want
1 you to know that The NCHERM Group condemns what you
are doing in the strongest possible terms and entreats you to
2 change your thinking and your practices. Our tone in this
3 section reflects the gravity and import of the situation.
20 against John Doe are those contained in University of California, Irvine, Notice of Rights
21 and Options in the Investigation and Adjudication of Sexual Violence and Sexual
22 Harassment Cases and in the University of California's Policy on Sexual Violence and
24 42. Respondents were bound to abide by the procedures laid down in the University
26 Violence and Sexual Harassment (January 1, 2016, revised 11/7/2016) (SVSH Policy
27 (2016)).
28 43. The University is a recipient of federal funds and is bound by Title IX and its
21 56. After conducting a fair, thorough, and impartial investigation, the Title IX
22 investigator makes credibility assessments, analyzes disputed and undisputed facts and
23 other evidence, and recommends whether UCIs policies were violated, applying the
24 preponderance of the evidence standard.
25 57. Since UCIs Student Adjudication Model for Sex Offenses and Sexual
26 Harassment states that formal rules of evidence do not apply, the investigators
27 application of the preponderance of evidence standard is meaningless.
28 58. The investigator prepares a written report that includes a statement of the
AMENDED PETITION FOR WRIT OF MANDAMUS
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1 allegations and issues, the positions of the parties, a summary of the evidence, findings of
2 fact, and a recommendation regarding whether there are any policy violations. If the
3 complainant or respondent offered witnesses or other evidence that was not considered by
4 the investigator, the investigation report will include an explanation why it was not
5 considered.
6
59. The investigation file must be retained and made available to the parties on
7
request, and may be redacted as necessary to protect student privacy rights.
8
60. Upon completion of the Title IX Investigation, the Title IX Officer and the
9
Office of Student Conduct jointly send to the complainant and the respondent written
10
notice of the investigation findings and the investigators recommended determinations,
11
and a copy of the investigation report.
12
61. Within ten (10) business days of the notice of findings and recommended
13
determinations, the Office of Student Conduct will send written notice to the complainant
14
and respondent setting forth the decision on the charges, policy violations, and sanctions
15
to be imposed.
16
62. If the Office of Student Conduct determines that disciplinary sanctions are
17
appropriate, the sanctions will be determined in accordance with the Universitys
18
19 sanctioning guidelines.