Accuser broke confidentiality with no sanction
The University of Colorado-Boulder’s use of “trauma-informed” practices in sexual misconduct investigations are “plausible” evidence of bias against males, a federal court ruled last week.
It denied the taxpayer-funded university’s motion to dismiss Title IX and due process claims by William Norris, who was suspended and banned from campus after two disputed encounters with “Jane Doe” over a lengthy relationship.
Norris claimed the university made numerous procedural errors during its 2016 investigation of Doe’s claims from 2014 and 2015. He also faulted the Title IX officials’ backgrounds in women’s studies and public support of women’s advocacy groups, calling those a “conflict of interest” that prejudiced his investigation.
The officials’ backgrounds do not make them inherently biased, U.S. District Judge Lewis Babcock said, but he found other reasons to question the fairness and impartiality of the proceeding against Norris.
The student has provided “at least some relevant information” to demonstrate that his gender-bias claims are plausible, the required standard in the 10th U.S. Circuit Court of Appeals, Babcock said. The judge also frowned upon “the timing of the notice” of investigation given to Norris and restrictions on his ability to review the investigation file.
“The court’s order made no findings that the University of Colorado or its employees engaged in any improper conduct,” university spokesperson Melanie Marquez Parra told The College Fix in an email. “The court could not receive evidence at this stage and only found the complaint sufficient for the case to proceed to discovery.”
Repeatedly used the wrong code to judge him
Norris and Roe had a year-and-a-half long friendship where “they would often kiss,” according to Babcock’s summary of the lawsuit. She later reported two sexual encounters as nonconsensual to the Boulder Police Department.
In response, Norris claimed he stopped moving his hand toward Roe’s genitals when she asked him to stop in spring 2014. He chose to stop their sexual intercourse in July 2015 due to feeling “guilty about cheating on his girlfriend,” who was also a “close friend” to Roe.
Roe claimed the day after the sex that she didn’t remember it. They didn’t talk again until six months later, when she accused him of rape.
CU-Boulder’s Office of Institutional Equity and Compliance appointed two investigators, Lauren Hasselbacher and Tessa Walker, to examine Roe’s allegations after it learned about her police report. The university found him responsible for the first but not second allegation by Roe.
Title IX Coordinator Valerie Simons was the sole determiner of Norris’s sanction, which also included mandatory treatment from “a licensed sex offender provider” and Simons’ personal approval for Norris’s readmission. A jury exonerated Norris in October 2017, and he filed suit against the university nearly a year later.
The university botched Norris’s proceeding by applying a conduct code that wasn’t in effect during his first encounter with Doe.
CU-Boulder had removed sexual misconduct from the student conduct code between Norris and Roe’s disputed encounters. It created the Office of Institutional Equity and Compliance in August 2014 and devised new procedures specifically for sexual misconduct, which did not allow appeals.
Though the 2013-2014 student conduct code gave Norris the right to appeal, this disclosure wasn’t mentioned in his 2016 sanctions letter. When she eventually granted Norris an appeal, Simons again ignored the 2013-2014 code, which requires a committee to review appeals. The Title IX coordinator reviewed her own determination instead.
“Multiple times during this process,” notifications sent to Norris wrongly cited the 2014-2015 code as applicable.
Judge allows TIX claim to move forward b/c of myriad procedural problems with Colorado's investigation process, plus possible gender bias. Very, very interesting section on how ideological bgrd of inv'r might have tilted her to evaluate evidence unfairly. pic.twitter.com/pOXetYGkeh
— KC Johnson (@kcjohnson9) February 21, 2019
Wouldn’t show him investigation file before police interview
Norris faulted Title IX officials for making several decisions that favored Roe, including giving her “unlimited time to participate” while holding Norris to strict response times.
Investigators issued their “written evidence summary” before letting Norris review the investigation file or answer follow-up questions. Even when he reviewed it, an OIEC staffer was present and Norris wasn’t allowed to make copies.
In contrast, Roe was given the investigation file and told not to share it. She shared it with police and was not punished.
CU-Boulder only gave Norris a notice of investigation after he was interviewed by Boulder police, who gave him “incorrect details about Roe’s allegations.”
Norris said this explains his “differing answers” to police and campus authorities, and Judge Babcock called this a “plausible claim that he did not receive adequate notice or a meaningful opportunity to be heard.”
The accused student “does not simply disagree” with the findings against him, as CU-Boulder claims, Babcock said: His lawsuit “sets forth a litany of grievances which he argues denied him of a fair and impartial process.”
In addition to the late notice and withholding of the investigation file, the university denied Norris a hearing and the right to cross-examine his accuser, stopped him from interviewing witnesses, hid all information about the committee that reviewed the investigative report, and let Simons conduct an “administrative review” of her own decision.
Joe Biden brought the ‘It’s On Us’ campaign to campus
Babcock also said the “public pressure” on the school to find accused men responsible for sexual misconduct could have played a role in the gender bias alleged by Norris.
The Department of Education’s Office for Civil Rights had released its “Dear Colleague” letter a few years earlier, which Norris alleges “minimized due process protections for the accused.”
OCR had also opened a Title IX investigation of CU-Boulder that was ongoing around the time of the first sexual encounter. The federal government also told schools to use a “trauma informed approach” in proceedings.
The university responded by hiring Simons, creating the new sexual misconduct code, and telling the campus it was “working hard to make the process as survivor-focused as possible.” Vice President Joe Biden delivered a speech at CU-Boulder for the White House “It’s On Us” campaign, and both Chancellor Philip DiStefano and Simons appeared in a video supporting the campaign.
The combination of all these occurrences with Norris’s claims of bias in his proceeding was enough for Babcock to let the lawsuit proceed. He cited the allegations that Simons “compared herself and the Investigators to judges sitting in a court of law,” should not have used a trauma-informed approach, and “overlooked inconsistencies of Roe’s account.”
Even if the public pressure side of the equation is not “sufficient” on its own, Norris has still plausibly alleged the university was biased against him, and thus deserves “access to discovery” to support his allegations, the judge said.
Judge also allows due process claim to move forward: notes lack of notice/access to file & lack of an appeal. In most important due process section, this becomes the latest out-of-circuit district court to accept as persuasive the CA6 Doe v. Baum holding on x-examination. pic.twitter.com/37muJ6tqaw
— KC Johnson (@kcjohnson9) February 21, 2019
Babcock dismissed the university’s defense of its procedures as meeting minimum requirements for “timely” notice and access to documents and “multiple opportunities to be heard throughout the investigation.”
He pointed out the university’s failure to investigate the first disputed sexual encounter with the conduct code that was in place at the time, and its repeated notices to Norris that listed the wrong code.
Simons and Hasselbecker, the investigator, were also involved in Title IX compliance and under the same public pressure to find accused men responsible as they carried out their duties.
“The University of Colorado has continuously evaluated and improved its policies to provide safety and support to those who experience sexual assault while simultaneously ensuring that everyone involved in an investigation has a genuine and meaningful opportunity to be heard,” spokesperson Parra told The Fix.
“We look forward to presenting evidence to the court showing that our employees who conduct and oversee investigations administer these processes fairly and in an unbiased manner that reflects our commitment to educational opportunity, equity, and the rule of law,” she said.
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