Friday, September 25, 2015

College expels male using 'preponderance' standard; male sues, college claims he should meet 'clear or substantial likelihood of success on the merits'

The men of Middlebury College ought to be concerned--very concerned. Their college doesn't bother to give men accused of sexual assault a hearing. Instead it trains sexual assault "investigators" to decide whether the male is guilty by telling them to start off by believing the accuser. The investigator is allowed to expel male students on her own using the lowest standard of evidence--"preponderance of the evidence"--but when the male student challenges the expulsion in a real court that holds actual hearings, the school wants the court force the male student to meet an even higher standard than the court normally employs in such proceedings, "a clear or substantial likelihood of success on the merits."

This actually happened, folks. Fortunately, the federal judge saw the injustice and reinstated the male student. But the editors at the student newspaper are very unhappy.

Sometimes I think the college rape witch hunt can't get any worse. Then I read about places like Middlebury College. Read on. This case encapsulates everything that's wrong with college sex "justice."

In November 2014, while on a study abroad program with the School for International Training ("SIT"), a male student of Middlebury College was accused of sexual misconduct. The accuser was also a participant in the SIT program but has never been a Middlebury College student. The male student's counsel asserts that he “was falsely accused of sexual misconduct" by the young woman. According to the male student, he and accuser engaged in consensual, sexual intercourse.

In accordance with its policies, SIT investigated the accusation and actually held a real, live hearing--after which the male student was exonerated in December 2014. Throughout the proceeding, SIT kept Middlebury informed regarding the complaint, investigation, hearing, and outcome. Middlebury allowed Plaintiff to return to campus and classes in January 2015.

But then, you can guess what happened. The accuser, and her unnamed college, weren't happy with the outcome. They made it clear that they were going to protest to the the Department of Education's Office of Civil Rights (the office that issued the anti-male "Dear Colleague" letter). According to Prof. KC Johnson, the college effectively set aside SIT’s finding, a Middlebury dean later said, based on the accuser’s “perceptions of SIT’s investigation and hearing process.” Middlebury decided to conduct its own purported "investigation" into the complaint. Middlebury didn't bother with silly things like a "hearing."  Middlebury investigators, Prof. Johnson points out, are trained how to investigate these kinds of cases: "they must 'start by believing' the accuser. The discussion with the accuser must not involve the investigator interrogating her; 'This is not the time for ‘"just the facts."’” Moreover: "While the investigator must 'start by believing' the accuser, the Middlebury official must begin by wondering if the accused is 'who he said he is.' . . . Middlebury investigators [are counseled] against using the term 'accuser' ('victim' or 'survivor' is preferred)." And: "The report prepared by the investigator 'should not include . . . consensual language' or anything indicating 'mutual participation.'” (Prof. Johnson asks: "But what if the intercourse was consensual . . . ?") And: "Nor should the investigator’s report include the following language: The 'victim has inconsistencies with her story.' . . . . Nor should the report conclude that 'the victim’s account of the incident is not believable or credible to officers given her actions during and after the encounter with the suspect.'”

This, of course, is beyond Orwellian. The case is over even before it has begun.

In the case at issue, the investigator used a preponderance of the evidence standard. Is it any wonder the investigator found the male student responsible? He was expelled.

The male student sued and sought a preliminary injunction to allow him to return to school to graduate in 2016. After a hearing, on September 16th, Judge J. Garvan Murtha of the United States District Court for the District of Vermont granted the injunction and reinstated the male student. The Judge found the male student had established a "likelihood of success on the merits" and noted that he would suffer irreparable harm if the federal court did not issue a preliminary injunction. The judge clearly was concerned that "Middlebury's policies did not authorize a second investigation and de novo evaluation of the allegation of sexual assault after it had been decided in [the male student's] favor by SIT, the sponsor of the study abroad program during which the alleged misconduct occurred, to whose discipline [the male student] was subject." The court wrote: "As a result of Middlebury's breach, Plaintiff has suffered the harm of expulsion and--in the absence of an injunction--the concomitant loss of a job, emanating from a completed summer internship program offered to rising college seniors, that depends upon his graduation in 2016."

The case is reported at 2015 U.S. Dist. LEXIS 124540 (D.Vt. 2015).

Just another witch hunt fomented by the misandry-laden sexual grievance industry. For devotees of that sad but powerful cult, things like due process and fairness are luxuries colleges can't afford to extend to male students. Innocent young men are necessary collateral damage in the war on campus rape.

But here's the interesting part: in footnote 7 of the court's opinion, the court notes that Middlebury wanted the court to require the male student to meet a higher judicial standard--requiring the male student to demonstrate "a clear or substantial likelihood of success on the merits." The college claimed that this higher standard was appropriate because if he prevailed on the preliminary injunction, the "relief cannot be undone and because [the male student] seeks to alter rather than maintain the status quo." The court rejected the argument.

But do you see the irony? When the college wanted to expel a male student, it applied the lowest legally permissible standard--preponderance of the evidence--and didn't even bother to give him a hearing. When the male student tried to undo the expulsion given the palpable injustice, the court holds an actual hearing, but the college wants the court to force the male student to abide by a higher standard than the court employs when deciding preliminary injunctions.

As if the school hasn't done enough to the male student, it is appealing the judge's decision.

So how do the good students of Middlebury react?

The student newspaper has written an editorial about the case that is positively other-worldly. It commended the college for its actions. The fact that SIT had previously conducted a hearing and exonerated the male student? A "technicality," clucks the editors of the student newspaper. "His counsel is made up of experts in their field with axes to grind; Harvey Silverglate, part of the firm representing Doe, published an op-ed in the Boston Globe asserting that 'the campus sexual assault panic' is 'one of many social epidemics in our nation’s history that have ruined innocent lives and corrupted justice.' Lawyers like these have the resources to find legal loopholes without having to contend with their clients’ guilt."

The next excerpt is laughable, pathetic, and chilling, all at once:

"Although we do not believe Middlebury to be above the law, we worry that if the College must face forces like Silverglate every time it decides to expel a student found guilty of sexual assault, our judicial system may be compromised and victims of sexual assault may hesitate to come forward because of Doe’s complicated legal challenge to Middlebury’s ruling."

Your "judicial system"?! Seriously? Your school trains "investigators" to find male students guilty, and doesn't even bother to give them a hearing! There have been two hearings in connection with this incident--one by SIT and one by the federal judge--and both concluded its more likely than not that the male student should not be expelled. Yet, you moan about your "judicial system"? You need to grow up.

I know that most college students look at the world in simplistic, and idealistic, black-and-whites, and that they march in lock-step to their moral superiors, the sexual grievance industry. But the good students of Middlebury College need to ditch the knee jerk assumption that their male classmates are guilty by reason of penis. Justice is anything but politically correct, and mature citizens of the world understand that fair processes are the only bulwarks we have against tyranny.

Every student of Middlebury ought to be outraged about what's going at his or her school.