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College ignores judge’s rejection of its Title IX procedures, re-tries student with same approach

New hearing with new investigator ‘appears to violate’ its own procedures

California’s Pomona College got slapped down in court in October for denying a “fair hearing” to a student accused of sexual misconduct.

Its response? Replace the Title IX investigator, but use the same “evidence” and procedures faulted by Los Angeles Superior Court Judge Mary Strobel to re-try “John Doe.”

The member institution of the private Claremont Consortium is pursuing the same strategy as Pennsylvania State University and the University of Texas when courts found serious problems with their Title IX adjudications, according to Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy:

A common theme to these two cases: Penn State or Texas procedures did not allow a new hearing after the university had adjudicated the case and dismissed an internal appeal. In short, both schools were trying to invent new procedures on the fly to remove procedurally flawed decisions from a court’s jurisdiction.

MORE: UT caves rather than explain president’s rejection of not-guilty finding

Pomona ignored repeated credibility problems with Doe’s accuser, its hired investigator relied heavily on school-requested Title IX investigations for business (suggesting conflict of interest), and it let the accuser skip the campus hearing – meaning she was never asked any questions by anyone in cross-examination.

Despite Judge Strobel telling the school that this failure to even indirectly cross-examine the accuser was unlawful, and that it violated its own rules by inventing an unwritten procedure to accommodate the accuser, Pomona is going forward with a new hearing against Doe.

Title IX Coordinator Sue McCarthy told Doe last month that the “same Investigation Report, Investigation Notes, and Statement of Alleged Policy Violation” issued before the May 2016 hearing would be used in the rehearing.

The new “external adjudicator” – not the Title IX investigator who produced all the materials that will be used again – has until Friday to review “submitted responses and related documents [from the parties] and make a determination of whether there were improper investigative procedures and/or whether there is new evidence … that should be admitted for the purposes of this hearing,” McCarthy told Doe.

MORE: Penn State to retry student after court nixes its Title IX procedures

Johnson writes:

The university did not inform Judge Strobel of this rather startling decision, which appears to violate existing Pomona procedures. Even more remarkably, McCarthy provided no indication that this second “hearing” (which, again, has no authorization under the college’s policies) would include cross-examination of the accuser, the defect identified in Judge Strobel’s ruling.

Indeed, McCarthy placed an extra burden on JD, demanding that he produce a 20-page report responding to Fellers’ original investigative report, including questions for the accuser if she decided to show up for this new hearing.

Indeed, McCarthy’s message explicitly says the parties can “decline to participate” in this new hearing – suggesting a Groundhog Day scenario where Doe relives the same unfair hearing with the same absent accuser and same inability to even indirectly cross-examine her:

It’s not hard to see what Pomona is doing here. Just as Penn State and Texas attempted, the message: wrongly accused students can sue, and might even win in court—but the victory will be meaningless, because the school will simply re-do the process, without altered procedures.

But the accused students in those other cases punched back.

Penn State gave up after the accused student filed a contempt-of-court motion. After being sued for personally overturning the not-responsible finding, UT President Greg Fenves rescinded his ruling and said the accuser’s appeal would go to another administrator. The judge, however, refused to cancel a hearing where Fenves could be compelled to testify how a donation to the school by the accuser’s father affected his decision to overturn the original finding. UT settled right before the hearing.

Read Johnson’s analysis and McCarthy’s message to Doe.

MORE: Judge slaps down college for no cross-examination of accuser

MORECalifornia governor vetoes anti-due process bill

IMAGE: chrisdorney/Shutterstock

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” Previously he led media and public relations at Seattle’s Discovery Institute, a free-market think tank. Greg is developing a Web series about a college newspaper, COPY, whose pilot episode was a semifinalist in the TV category for the Scriptapalooza competition in 2012. He graduated in 2001 with a B.A. from Seattle Pacific University, where he co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon.

Add to the Discussion

  • KeenIncite

    Time to make a federal law that if a criminal sexual episode occurs on campus, it is taken completely out of the hands of the college and referred to local law enforcement.

  • Vincent Morrone

    So the college is doing this right at finals time, adding not only stress, but additional $ to the student. It’s not just that the college wants to try and impose it’s unfair procedure on a student, they’re trying to send a message about how expensive it is to challenge them.

    • Matthew Borcherding

      I’m a Pomona grad and I’m NOT amused.

      Intentional infliction of emotional distress. Doe should add this to his next suit. I see a high six figure payout in his future.

      And the Title 9 Coordinator should be sitting in a jail cell for contempt of court. And she should be fired. Immediately.

      • Vincent Morrone

        From what I’ve seen in my research on this, most students barely cover their legal fees, some don’t even do that. They need quick settlements to get out from under staggering court costs. It’s 20-30 k to even get started. And the longer it lasts, the longer the gap on their record is. They often have to sign non disclosure agreements, which means they can’t talk about how much evidence was in their favor. It’s a lose lose. It’s just a matter of how badly you lose.

  • TheWanderingJewels

    okay. that’s it. Shut down Title IX offices. and arrest the administrators for contempt of court. this has gone far enough

  • Michael Steane

    Hopefully, the individuals responsible for this debacle will not be able to hide behind any kind of immunity for criminal charges. It is clear that they are showing contempt of court in addition to any other charges that may be brought against them.

  • Deserttrek

    until these tyrants have to pay from their own pockets, nothing will change

  • Dan Summers

    And taking Bribes…Wow.

    Shut the place down!