Wednesday, July 15, 2015

California court's decision rips off an ugly scab and reveals how colleges mistreat their male students

Any male student thinking of attending the University of California, San Diego--not to mention the more than 12,000 undergraduate male students currently enrolled there--needs to read the chilling judicial decision handed down last week by Judge Joel M. Pressman of the Superior Court of California, County of San Diego. It can be found here. Sadly, although the decision is about just one case involving just one university, most universities are guilty of the same things that happened here.

In the instant case, a 20-year old male student sought relief in court after a University disciplinary proceeding found him responsible for sexual assault. The court didn't just grant the relief, it made it clear that the male student was treated egregiously by his own university.

Judge Pressman said that the disciplinary panel that decided the male student's case, and the procedures used by the school, were outright "unfair" to the male student. In fact, the Judge used the term "unfair," "unfairly" or "unfairness" seven times in his short opinion to describe the University's treatment of the male student.

The hearing was rife with procedural irregularities that prevented the male student from defending himself.  Before mentioning them, it is well to note that the court held the evidence did not support the panel's conclusion that a sexual assault occurred:
At the hearing on December 12, 2014, petitioner testified clearly that the allegation of touching on February 1, 2014 was false and did not occur. The only evidence presented in any meaningful way at the hearing was the testimony of Ms. Roe. Ms. Roe stated that petitioner kept 'trying to finger [her] and touch [her] down there.' Also, Ms. Roe did not object to sexual contact per se, and only explained that it was not pleasurable for her at that time.

Additionally, Ms. Roe admitted that she voluntarily continued consensual sexual activity with Mr. Doe later that very same day. The Court is not weighing Ms. Roe's credibility. But the incident on the morning of February 1, cannot be viewed in a vacuum. When viewed as part of the entire narrative, the sequence of events do not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe's personal regret for engaging in sexual activity beyond her boundaries. (See AR 20-21) The panel's finding in paragraph 3 illustrates the lack of evidence: "Jane stated that she physically wanted to have sex with Ryan but mentally wouldn't." The record reflects this ambivalence on the part of Ms. Roe. But Ms. Roe's own mental reservations alone cannot be imputed to petitioner, particularly if she is indicating physically she wants to have sex.
The hearing was stacked against the accused male student from the outset because of the procedures employed--and they are procedures that could ensnare any male student in the current climate of the academy. The only witness at the hearing was Ms. Roe. Yet, in the closing argument made by the University's representative (a closing argument is not evidence), he was permitted to talk about a report written by someone named Elena Dalcourt of the UCSD Office for the Prevention of Harassment & Discrimination. Dalcourt supposedly conducted an "investigation" of the incident, and the University's representative read from Dalcourt's report in his closing argument: "Based upon the totality of the circumstances and the evidence presented, I find it more likely than not that on February 1, Mr. Doe ignored Ms. Roe's objections to sexual activity in violation of the Student Sex Offense Policy."

Not only did the panel allow this statement to be read, the panel actually relied on Dalcourt's report in deciding that the male student was guilty.

The problem was that Ms. Dalcourt did not testify--the University didn't even bother to bring her to the hearing. The male student on trial had no opportunity to cross examine her. Beyond that, the male student was not even given the purported evidence Dalcourt relied on to reach her conclusion and was, thus, deprived of any opportunity to challenge that evidence--to show it was unreliable or outright wrong. Judge Pressman held that "the hearing did not allow [the male student] any opportunity to refute Ms. Dalcourt's findings."

There is another fundamental problem with the panel's reliance on the Dalcourt report. In a sexual assault proceeding, it is repugnant to due process and all notions of fairness to allow a purported expert to feed the trier of fact the conclusion that a sexual assault was committed. See here. As Judge Pressman explained, "it was the panel's responsibility to determine whether it was more likely than not that petitioner violated the [University's sexual assault] policy and not defer to an investigator who was not even present to testify at the hearing."

Perhaps the most egregious injustice was that the university unfairly limited petitioner's right to cross-examine the primary witness against him, Ms. Roe. The panel screened the male student's questions and refused to ask numerous questions he wanted to pose (the panel did not similarly screen the University's questions). The panel allowed the accuser to unilaterally cut off questions about their consensual relationship after-the-fact, as if such evidence could not possibly shed any light on whether a sexual assault occurred.

The court also held that the accuser should not have been hidden behind a barrier during the hearing--the accused has the right to confront adverse witnesses, and the accuser should not be hidden from the trier of fact given "the importance [of] demeanor and non-verbal communication in order to properly evaluate credibility." This, the court explained, was prejudicial to the male student.

Perhaps the most bizarre, and chilling, aspect of the case is that after the male student was sanctioned, when he filed his appeals (as was his right under the University's policy), the University kept increasing his punishment, without explanation. "Given the lack of rationale by both Dean Mallory and the Council of Provosts for the increased sanctions, it appears the increased sanctions are punitive towards Petitioner for appealing the decision of the Panel."

Read that again: a court in California has ruled that a male student was severely punished by his University for doing nothing more than exercising a right that his University afforded him.

The court also held that the panel made an unfair inference of guilt based on the male student's invocation of his right to remain silent under the Fifth Amendment. The right to remain silent is among our greatest bulwarks against tyranny--this right wasn't designed to shelter the guilty but to protect the innocent. As the Supreme Court has stated, "one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." To punish a male student for invoking it is anathema to fairness.

Judge Pressman's decision isn't some legal outlier, it is wholly consistent with the very serious concerns expressed by many legal scholars, including 16 Penn law professors and 28 Harvard law professors, and many others.

FIRE wrote this about the decision: "The decision in Doe v. UCSD is important because it demonstrates that when courts subject campus proceedings to scrutiny, the ugly truth of their shortcomings is glaring." Insuring fairness in thorny "he said-she said" hearings is difficult even for judges who are trained to do it and who do it regularly. The egregious unfairness in this case illustrates that it is a task that is impossible for amateurs.

I would be surprised if the University doesn't appeal--if Judge Pressman's holding is unchallenged, it will be difficult for the University to explain to its male student population why it treats them unfairly. But Judge Pressman's decision ought to be a wake-up call for all colleges who cavalierly dispense with basic fairness for male students in their sexual assault hearings. The campus sexual assault witch hunt has been driven by a public outcry funded by a wealthy, and overly zealous, sexual grievance industry. Craven politicians who worship at the altar of group identity politics have seized upon it. But Innocence Project guru Mark A Godsey has warned that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases." Judge Pressman's decision fired a shot across the bow of the sexual grievance industry. Let's hope his decision has broader implications.