Investigator hoodwinked by selective release of texts
Why doesn’t Notre Dame allow attorneys to help their accused student clients during student conduct hearings?
According to a university official who sat on a hearing panel, it’s because the proceedings are “educational.” According to a federal judge that just ruled against the university, “This testimony is not credible”:
Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is “punishment“ in any reasonable sense of that term.
Senior “John Doe” won a preliminary injunction against the school Monday, ensuring that he will be able to complete his coursework (final exams) this semester.
Though it’s a small initial victory in Doe’s due-process lawsuit against the school for expelling him on the basis of “dating violence” allegations by a vengeful ex-girlfriend, Judge Philip Simon’s comments on Notre Dame’s Title IX practices should worry the school as the lawsuit continues.
Simon noted that Notre Dame’s investigation failed to uncover the “near daily discussion” between Doe and “Jane Roe” after she filed her complaint – what he characterized as a “cozy back and forth” that ended “less than two weeks after Jane and John were planning sleepovers and expressing their love for one another.”
The judge cites many happy and sexually suggestive texts from Roe to Doe after she had filed her complaint against him, but before she decided to go forward with it.
After the no-contact order was imposed, Doe deleted Roe’s contact – including the “hundreds of text messages that they had sent to one another,” Simon wrote:
Jane took a different tack. She decided to retain all of the text messages, and candidly this gave her the upper hand because it enabled her to control what texts would be produced and considered in the administrative process. …
Jane … provided [investigator Lynn] Kalamaros with some, but not all, of the text exchanges between the two. The ones she shared with Kalamaros placed John in a very bad light and without context. Kalamaros, for example, had no idea that Jane had invited John to Champaign two weeks earlier, that they were having sleepovers and meeting up for “naps,” or that Jane expressed her love for John in no uncertain terms.
Roe later had Doe arrested in class for allegedly violating the no-contact order, but “credible testimony” established that Doe had a “happenstance,” unintentional encounter with Roe, showing her complaint was “utterly spurious,” Simon wrote.
The school inexplicably kept Doe and Roe’s “countercomplaints” against each other on separate tracks, which is unusual when “back-and-forth complaints are made by people in a long-term relationship,” Simon wrote. The end result was Roe’s alleged misdeeds were “largely omitted” from the report and hearing.
Roe had a telling response when, after seeking a restraining order against Doe in state court, Doe sought discovery of “the entirety of his text exchanges with Jane”:
Jane balked, and instead of producing the text stream, she decided to dismiss her request for the restraining order and in the process frustrated John’s efforts to get the full exchange between the two so that he could tell the story of their tumultuous relationship in full context.
Roe’s mother, an attorney, later threatened the school with her own Title IX complaint for allegedly ignoring court orders. She made a more immediate threat to Notre Dame’s reputation, comparing its treatment of her daughter to how it treated Libby Seeborg, who committed suicide after a football player allegedly raped her.
Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, cited several sections of Simon’s order that frown upon Notre Dame’s procedures.
Not only did Simon rebuke Ryan Willerton, director of the Office of Community Standards (OCS), for saying an “educational” process doesn’t require attorneys, but he said Notre Dame’s method of dumping “several inches” of Roe’s documents on Doe could make its process “capricious”:
John had two-and-a-half days to review the materials, and could only do so in the OCS office, without making copies. Such a process is not designed to facilitate a fair hearing for which John is fully prepared to respond against Jane’s allegations and evidence.
Judge also seems v. skeptical of fairness of a university process that denies meaningful x-exam or representation by lawyers: pic.twitter.com/hz3aVZBJ84
— KC Johnson (@kcjohnson9) May 8, 2017
Notre Dame also vested too much discretion in the hearing panel to not only decide what questions can be asked of witnesses, but to require all questions in writing, Simon wrote: “The stilted method does not allow for immediate follow-up questions based on a witness’s answers, and stifles John’s presentation of his defense to the allegations.”
Most importantly, the judge wrote: “The public has an interest in fundamentally fair and sound educational discipline that is not imposed arbitrarily or capriciously.”
Doe limited his request in this motion to his ability to take his final exams, so Notre Dame may continue to withhold his degree, block him from campus and ban him from commencement participation.
The next fireworks may come when the court reviews “the audio recording of the Administrative Hearing,” which Simon ordered the university to preserve along with all other “potentially relevant” documents.
Recording such proceedings can open universities to liability if students seek them in litigation. Columbia University is under fire from both anti-rape activists and accused students for threatening to punish students who take notes during sexual-misconduct proceedings.
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