University didn’t record accuser’s testimony: ‘technical difficulties’
“Jane Roe” initially said the vaginal sex was consensual. Later, she said it wasn’t.
Syracuse University rejected her two other nonconsensual claims about other forms of sex, but upheld the one that she switched during the investigation.
This is only one of many reasons that a federal judge refused to dismiss a lawsuit against the private university by an accused student.
In his memorandum and order Wednesday, U.S. District Judge David Hurd approved Title IX and breach-of-contract claims to move forward against Syracuse.
The university suspended “John Doe” until his accuser graduates, following an investigation led by a sexual-assault victim advocate who falsely claimed Jane’s testimony had no “contradictions or omissions.”
In fact, Title IX investigator Bernerd Jacobson (below) refused to “investigate contradictory statements” by other students about Jane’s behavior after the incident, John argued. Jacobson seemed uninterested in knowing about different versions of the incident that Jane gave different people.
In a finding that echoes a ruling against Yale University regarding its proceeding against former basketball star Jack Montague, Judge Hurd said Syracuse may have failed to follow its own evidence standard in the proceeding.
He also frowned on the propriety of Syracuse assigning someone whose “prior professional experience [was] advocating for victims of sexual assault” to serve as an investigator. This is one of the ways John has “pleaded facts sufficient to make it plausible that gender was a motivating factor behind the erroneous outcome” of the proceeding, Hurd said.
Claims contradicted by her roommates
John met Jane at a bar on Sept. 1, 2016, and invited John back to her “dormitory suite” after an evening getting to know each other. After the roommates left the common area, John and Jane started kissing, according to John’s suit.
She agreed to perform oral sex on him but asked to continue in the bedroom. Jane asked her roommates to leave, and she and John then had consensual but unprotected vaginal intercourse for about 10 minutes.
John later expressed concern to Jane that he might have got her pregnant, but they hung out again the day after with Jane’s friends. Four days later, John heard a rumor he had done “unspeakable things” to Jane, which made him “purposefully” avoid her.
Two months later Jane formally accused him of nonconsensual oral and anal sex, and claimed she had “withdrawn her consent prior to having vaginal sex.” (John denied they had anal sex.) She also claimed he “inappropriately touched her” Sept. 5 when they had a group meal.
As is common in Title IX investigations, Jacobson didn’t give John “any details” about the alleged misconduct at first. John learned during a later meeting with the investigator, however, that Jane had changed her story about the vaginal sex, originally saying it was consensual.
Her other claims didn’t match up with witness testimony. No one at the Sept. 5 group meal saw John inappropriately touch Jane. Her roommates did not say they heard her crying, directly contradicting Jane.
One of them said Jane “seemed ok with” the sex that was imminent, and heard “sex noises, but nothing unusual” coming from the bedroom. Two other students left the common room “with the sole purpose of providing privacy” to the amorous couple.
The investigator went out of his way to avoid investigating “contradictory statements” about how Jane acted after the sexual encounter: Multiple students said she attended “several campus events,” while another one said she “didn’t go out for a long time.”
The investigative report by Jacobson made the “incredible” claim that Jane’s story was “wholly plausible, no contradictions or omissions are noted,” despite the contrary witness statements, Judge Hurd wrote with emphasis.
Conduct board conflated hearsay with a ‘medical document’
Jacobson withheld crucial evidence from John that showed Jane’s story changed in another way. During the investigation, Jane alleged anal but not vaginal bleeding. She told a nurse, however, that she suffered vaginal bleeding.
The conduct board, which receives the investigative report and questions the parties separately in a hearing, accepted the nurse’s letter as a “medical document” that confirmed Jane’s vaginal bleeding. The letter, however, simply conveyed Jane’s claim; the nurse did not examine her. John didn’t know about it before the hearing.
Because witnesses weren’t invited to testify, John couldn’t question them, and he was barred from questioning Jane. Jacobson didn’t testify either.
The board joined in the business of hiding evidence, failing to record Jane’s interview as required by Syracuse policy. When John appealed their decision, the transcript that came back disclosed that “technical difficulties” prevented recording. The appeals board ruled that the “technological malfunction” would not have affected the outcome of the hearing.
The conduct board judged that Jane was telling the truth about nonconsensual vaginal intercourse, and found John responsible for three student-conduct violations: “physical harm” to Jane, conduct that “threatens” Jane, and violation of unspecified university policies. His transcript shows that he was “suspended after a finding of responsibility for a code of conduct violation.”
The proceeding took nearly twice as long as Syracuse’s written policy promises. It also failed to notify John of circumstances that delayed the investigation or board’s determination, also in violation of Syracuse policy, according to John.
Because the proceeding was still going, John re-enrolled for spring semester, paying tuition and a variety of other expenses that he would not have to pay if Syracuse had kept it promise of a 60-day proceeding.
His academic performance suffered because of the ongoing proceeding, and he’s sought professional help and prescriptions to handle the resulting “severe and significant emotional damages.”
As often occurs in strong opinions, acc'd student's complaint presented strong evidence of innoncence. Opinion (below) from Judge David Hurd (Clinton nominee); case argued by Andrew Miltenberg, @NMLLPLaw:https://t.co/wCQV4A6i9d pic.twitter.com/kPpXSDCyuS
— KC Johnson (@kcjohnson9) May 8, 2019
‘Trauma-informed’ training is plausible evidence of gender bias
In the 2nd U.S. Circuit Court of Appeals, which oversees Hurd’s district court, the plaintiff need only plead “specific facts that support a minimal plausible inference of [gender] discrimination,” stemming from a 2016 ruling against Columbia University.
Hurd cited an even more recent district court ruling, also against Syracuse, that showed how this standard can be satisfied: A plaintiff points to flaws in the investigation, “assumptions made by investigators” and refusal to consider evidence of innocence, combined with “public pressure on the University to more aggressively prosecute sexual abuse allegations.”
John meets the “erroneous outcome” standard he’s pleading, the judge said, citing Jane’s shifting story, her roommates’ contrary statements and failure of anyone to corroborate the “inappropriate touching” claim. The conduct board “could not find credible” the only claim by Jane that it upheld out of the three she made, and thus it ignored Syracuse’s mandatory preponderance-of-evidence standard.
John also alleged that Jane’s story was “influenced” by Jacobson, who showed his bias as a former victim advocate by accepting, “without question, major changes” to her story. He faulted the state-mandated “trauma-informed” training that the conduct board received. The training led the board to view Jane’s inconsistent and contradictory statements as a result of “a traumatic event” like she described.
The Department of Education’s Office for Civil Rights not only opened two investigations into Syracuse’s alleged mishandling of Title IX investigations in 2016, but representatives visited Syracuse just two weeks before John’s hearing in 2017, Hurd noted. All of this meets the pleading standard.
The judge also rejected Syracuse’s claim that John’s breach-of-contract allegations only applied to generalized “policy statements” or “unspecified procedures” that are not enforceable as contracts.
“The alleged breaches specifically refer to expressly enumerated conditions and rights, such as the guarantee of the preponderance of evidence standard during a Conduct Board hearing, published by SU in regulations that it chose to make available to its students,” Hurd wrote.
Even the oft-rejected claim of “promissory estoppel” is going forward under Hurd’s ruling.
John said Syracuse “should have expected” that he accepted its admission offer “based on its
express and implied promises,” including that any claims against him would come before “an impartial and objective panel, to be free from discrimination, and to have complaints resolved impartially and promptly.”
He has made a “prima facie” claim by alleging Syracuse denied him the protections it promised him when he accepted its admissions offer, the judge said.
“The egregious male-gender bias on display at Syracuse – as well as the total disregard for the due process rights of male students – exemplifies everything that is wrong with Title IX investigations on college campuses,” John’s lawyer Andrew Miltenberg said in an email to The College Fix.
“My client had no shot at defending himself from the onslaught of male gender bias at Syracuse throughout this mockery of a Title IX investigation,” said Miltenberg, who called Syracuse’s failure to record Jane’s testimony a “direct violation” of state law. “As a result, he faces life-altering consequences.”
IMAGE: Happy Stock Photo/Shutterstock, Syracuse University screenshot