Judge questions ‘assumption that an assault occurred’
Title IX training materials at the University of Mississippi suggest that even verified âliesâ of rape accusers âshould be considered a side effect of an assault,â according to evidence in a lawsuit against the university.
Chief U.S. District Judge Daniel Jordan approved Title IX and due-process claims to move forward against the taxpayer-funded institution last month, citing not only training materials but the investigative practices of Title IX Coordinator Honey Belle Ussery.
The judge highlighted troubling allegations against Ussery, including that she threatened Doeâs date to a fraternity function and repeatedly excluded evidence that favored Doe, which may demonstrate her âgender biasâ against accused men.
Usseryâs evidence that Doe sexually assaulted âJane Roeâ suggests âjust the oppositeâ if Doeâs claims are accurate, Jordan said:
Taken as a whole, the Court concludes that Doe has stated a plausible claim. This is a he- said/she-said case, yet there seems to have been an assumption under Usseryâs training materials that an assault occurred.
In a statement that must worry the university, the judge said he was still mulling whether the low evidence standard used by Ole Miss – and practically every other American university for the past several years – is unconstitutional, at least in some Title IX cases.
Judge: Yes, I have jurisdiction over you
The July 24 order responds to the universityâs claims that Jordan doesnât have jurisdiction over the dispute and that Doe didnât allege the university did anything unlawful to him.
The judge dismissed several defendants who are ânot in a position to provide the requested reliefâ to Doe, namely the trustees for state universities.
But Jordan approved due-process claims against Chancellor Jeffrey Vitter in his official capacity, âbased on the allegations related to the standard of proof and Usseryâs investigation, report, and training materials.â
The dispute goes back to March 2017, when Doe and Roe had a sexual encounter that he claimed was consensual. She told the Title IX office the next day that he âsexually assaulted herâ but did not decide to file a formal complaint for two months.
Doe appealed the first ruling by the University Judicial Council, which found him responsible and expelled him in August 2017. A second hearing with a different council makeup found him responsible and suspended him until August 2018, leading Roe to appeal the punishment.
MORE: Title IX adjudicator suggested men enjoy being sexually violated
At that point âthe Appellate Consideration Board changed the sanction levied from suspension to expulsion,â according to Jordanâs summary of the case history.
The judge dismissed the universityâs argument that the controlling precedent of the 5th U.S. Circuit Court of Appeals doesnât allow Jordan to consider âTitle IX claims in the context of university disciplinary proceedings.â
Ole Miss doesnât cite any 5th Circuit ruling that actually âdeclined to adoptâ this theory of university liability, he said. In fact, the appeals court has âreviewed several Title IX claims related to university disciplinary proceedings,â as have other trial courts.
Jordan looked outside his jurisdiction for guidance on how Ole Miss may face Title IX liability for punishing accused students âwhen gender is a motivating factorâ: two theories from the 2nd Circuit (âerroneous outcomeâ and âselective enforcementâ) and two from the 6th Circuit (âdeliberate indifferenceâ and âarchaic assumptionsâ).
If you support Doe, Ole Miss would consider it ‘retaliation’
At this stage of the case, where Jordan must view the claims âin the light most favorable to Doe,â the judge said the accused student pleaded a âplausible claimâ that the sex was consensual and the finding against him, erroneous.
The evidence of gender bias comes from Usseryâs alleged failure to perform her job description, which is to compile âall evidenceâ into a report, the judge said.
Ussery (left) was a local prosecutor who âfought for victims of sexual assaults and domestic abuseâ before joining Ole Miss in 2015 as Title IX coordinator, according to a university question-and-answer interview with her.
The Title IX coordinator left out Roeâs initial statement that âshe initially did not believe she was rapedâ as well as other complicating statements by Roe, including that she said on âmultiple occasions that she did not want to pursue chargesâ against Doe and even âexecuted a non-prosecution form.â
Ussery repeatedly mischaracterized Doeâs statements – including that Roe âpulled down his pantsâ before sex – and did not address âforensic police evidenceâ or interview relevant witnesses, including security personnel and a dorm administrator.
The coordinator also failed to consider a sexual-assault examination of Roe that found no vaginal, neck or other injuries, or the polygraph test passed by Doe, and her report included âinaccurately paraphrased and summarizedâ statements from witnesses, according to Jordan.
When Ussery interviewed Doeâs date to a fraternity formal, she told the date not to tell Doe that Ussery had interviewed her and encouraged her to âmove onâ from him, the date testified. The coordinator also attempted to convince the date that Roe was a âvictimâ and that âsupporting Doe would be considered retaliation and could get her in trouble.â
Doe did not âoffer any relevant legal authorityâ for why Usseryâs alleged behavior showed gender bias as opposed to âpro-victim bias,â as Ole Miss argued, but Jordan said he should get the right to further discovery of Ole Miss in light of the âtotality of the factual averments.â
Ole Miss Title IX training materials say rape accusers lie as “a side effect of assault” by The College Fix on Scribd
Normal for victims to ‘lie about anything that casts doubt’ on them
While Jordan dismissed most of Doeâs claims that his due-process rights were violated, the judge took issue with Usseryâs practices and the training materials for Title IX officers, the Judicial Council and appeals board.
Unlike a 5th Circuit ruling that Ole Miss relied on, Doe âhas not received the opportunity to conduct discoveryâ and the facts he pleads âdo not suggest overwhelming proof that Doe sexually assaulted Roe, they suggest just the opposite,â the judge said.
Under 5th Circuit precedent, therefore, âthe amount of process due may be higher.â
MORE: Judge approves subpoena for Obama records on anti-male bias
Jordan agreed that Doe has a âplausible claimâ that Usseryâs investigation was âbiased and flawed,â that her report to the hearing panel was âunfair,â and that the panel itself âhad been trained in a way that prejudiced Doeâs ability to be heard.â
The training material says that an assault victimâs âlack of protest or resistance does not constitute consent, nor does silence,â and that a victim may âwithholdâ details of the assault or âlie about anything that casts doubt on their account of the event.â These lies or withheld details âshould be considered a side effect of an assault.â
Doe will get a chance to further demonstrate that the panel was âtrained to ignoreâ deficiencies in the investigation, the judge said: âIt is therefore plausible that the scales were tipped against Doe to such a degree that further procedural safeguards may have lessened the risk of an erroneous deprivation.â
Title IX proceedings: ‘quasi criminal,’ must use higher evidence standard
Doe disputed the preponderance-of-evidence standard used by the Judicial Council to judge sexual-assault allegations, which Jordan called a âthorny issue.â
While only one federal appeals court has considered the issue and upheld the “more likely than not” standard – the 6th Circuit – that was an âunpublishedâ opinion, meaning itâs not intended to be cited as precedent, Jordan noted.
He was more persuaded by the âforcefulâ dissent made by Judge Edith Jones of the 5th Circuit in a similar 2017 case against the University of Houston, known as Plummer.
Jones, the former chief judge, had argued that hearings on sexual misconduct are âquasi criminalâ and have âlong-lasting impacts on the accused.â Because of this, Jones called for a more âburdensome standard of reviewâ in university policies.
She recommended the âclear and convincingâ standard that some elite universities had used before the Obama administrationâs Department of Education ordered colleges to use preponderance in 2011. This standard is âa rung belowâ the criminal standard, which âwould maximize the accuracy of factfinding,â Jones had written.
Jordan noted that Jonesâ colleagues didnât even consider the issue, and in light of Doeâs surviving claims and âthe developing nature of the law,â the judge will âcarry this issue beyond the pleading stage.â
Ussery, the Title IX coordinator, did not respond to multiple phone and email inquiries from The Fix. Neither did Doeâs lawyers Michelle Tolle High and J. Lawson Hester when The Fix asked them which other universities have similar policies that might violate due process.
Ole Miss media relations did not respond to Fix questions about its Title IX training material.
Another attorney who specializes in due-process cases against universities, Justin Dillon, tweeted that he hoped this lawsuit âwill help the training-materials issue get some traction.â
Dillon told The Fix in an email last week he would comment on the ruling after reading over it in depth, but has yet to respond further.
Brooklyn College Prof. KC Johnson, co-author of The Campus Rape Frenzy, tweeted that Jordan âleaves open the possibilityâ that the preponderance standard – âimposed by the Obama-Era OCR guidanceâ – might violate studentsâ constitutional rights. Johnson did not respond to email inquiries from The Fix for his deeper thoughts on the standards.
I hope this case will help the training-materials issue get some traction. On a college campus, âtrauma-informedâ is just doublespeak for âguilt-assuming.â https://t.co/jqSX07EBFo
— Justin Dillon (@JustinDillonLaw) July 28, 2018
MORE:Â Title IX official can be personally liable for anti-male bias: 6th Circuit
IMAGE: pathdoc/Shutterstock
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