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Depriving accused student athletes of due process is needed ‘to keep women safe’

The University of Oregon is facing a multimillion-dollar payout if it can’t convince a federal judge in Eugene that black student athletes don’t deserve due process if someone accuses them of rape.

The school was in court for three hours Tuesday trying to get the single consolidated suit by ex-basketball players Dominic Artis, Damyean Dotson and Brandon Austin dismissed, The Register-Guard reports.

Their claims against the school – based on likely lost earnings from continued collegiate and potential NBA careers due to their 10-year suspensions – total $28.5 million. The district attorney had declined to prosecute them, citing lack of evidence.

MORE: Rape accuser misuses federal privacy law

In arguments before Judge Michael McShane Tuesday, the school seemed to say it can do whatever it wants to protect female students.

McShane’s background and trip to the bench make it hard to predict whether he’ll agree. According to the Register-Guard, he said he’ll take several weeks to rule because he’s reviewing police reports among other documents.

‘Discriminatory animus against men’

We have covered the fallout from the two-year-old allegations of nonconsensual group sex – which resemble those of University of Virginia fabulist Jackie Coakley – several times in the past 18 months:

the accuser’s legally dubious invasion-of-privacy claims against UO after she sued the school for Title IX violations

the Legislature’s move to hamstring schools from defending themselves in such suits

the Department of Education’s “likely” change that would do the same nationwide, in the wake of publicity around the UO case

UO’s $800,000 payout and full ride to settle the accuser’s suit

its argument that Austin waived his right to sue because it steered him toward a suspension-only hearing

the spring lawsuit by Artis and Dotson against UO for their “sham court” hearing, “which granted the female accuser the presumption of truth because she’s a female”

Lawyers for the ex-players told Judge McShane Tuesday that UO administrators “prejudged the situation” and blocked their clients’ “clear” path to the NBA despite the fact they were never charged.

Ex-President Michael Gottfredson, who resigned before the school’s settlement with the accuser, also prejudiced the players’ chance of a fair hearing by calling the accuser a “survivor” and saying he was “appalled by the allegations” as a father – showing “the university’s discriminatory animus against men,” said Dotson and Artis lawyer Bryan Michaels.

MORE: Likely Supreme Court pick is hearing accused man’s case against feds

UO lawyer Michelle Barton Smigel waved off those prejudicial statements by saying UO is legally bound to implement “efforts to keep women safe and from being sexually assaulted,” which is not inherently anti-male:

“Historically, (protecting students) means protecting women from getting sexually assaulted because historically those are the victims. It doesn’t mean (the university’s efforts to prevent sexual assault) is discriminatory against men — helping women is not necessarily hurting men.”

MORE: $800K and a full ride to make rape accuser go away

She again argued the players couldn’t sue because of the suspension-only hearing they chose, without noting that UO appeared to steer them toward that venue to keep the accuser safe from cross-examination.

This is similar to the plea bargains that prosecutors often force on defendants who risk decades in prison under mandatory minimums if they face a jury of dubious open-mindedness or concealed racism.

MORE: Department of Ed ‘likely’ to hamstring colleges so they can’t defend themselves

A former public defender … but also Obama appointee

Judge McShane is a hard read. He worked for the Jesuit Volunteer Corps but isn’t known as religious.

He’s a 2013 appointee of President Barack Obama, whose “It’s On Us” campaign against campus sexual assault is a proud cheerleader in the fight against due process and unhinged accusations. His nomination was supported by Oregon’s two Democratic senators, both sponsors of the anti-due process, pro-accuser Campus Accountability and Safety Act.

MORE: ‘It’s On Us’ video is fuzzy on consent

One of his fellow Obama appointees on the federal bench is hostile to college men accused of rape and was just overturned by his appeals court on that subject. That judge’s appointment was backed by the loudest voice against due process in the Senate, Democrat Kirsten Gillibrand.

McShane is best known for striking down Oregon’s law defining marriage as one man and one woman in 2014 (he has a same-sex partner), but he has a reputation for showing kindness to defendants, perhaps borne of his years as a public defender.

MORE: Black basketball players tried in UO ‘sham court’

The Oregonian reported:

The trial of a man accused of stabbing his wife’s lover to death was set to begin in a downtown Portland courtroom.

The only problem was the defendant – Satya Dasa – was unwilling to let the proceeding start because his shoes were too tight.

Judge Michael McShane asked Dasa what size he wore, and when the defendant responded “10,” McShane promptly removed his own shoes and asked Dasa if they would do. Dasa said yes.

MORE: Judge who ruled against accused man overruled on appeal

The judge also held a “Friday breakfast club” for probationers and met defendants for early-morning appointments at the detox center. He was even faulted by a televangelist for helping a “child rapist” get a lighter sentence (more background on that here).

So McShane has a soft spot for defendants, even those accused of terrible things, though it’s unclear if he’ll see basketball players who stood to earn millions in the same light as indigents.

MORE: We need less ‘judicial restraint,’ not more

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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.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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