Tuesday, July 14, 2015

UCSD administrators punish a male student without considering the facts

UCSD is not alone when it comes to abusive administrators. A recent case at UCSD sounds sadly familiar.

In the case below, the woman who brought charges of sexual assault seems to have lost perspective about one instance of touching in between two acts of consensual sex with another student.

UCSD administrators also lost perspective.  They threw out most of the evidence in the case.

And then dean Sherry Mallory and the UCSD council of provosts made the situation worse by using abusive measures to deprive a student of due process:
Judge Pressman simultaneously found that the school's dean Sherry Mallory and the council of provosts increased the period that John Doe would be suspended from school each time he tried to appeal the board's decision.

Why do college and K-12 administrators rather frequently act in an arbitrary and abusive manner?

Because they can.

They have lawyers who will help them get away with improper actions--most of the time. Very frequently the Superior Court will rubber stamp just about any action by school officials, but in the following case, the Superior Court didn't tolerate UCSD's abusive behavior in a Title IX hearing.

In my experience, public entity lawyers FREQUENTLY FAIL to advise public officials that they must follow the law.  Perhaps the lawyers fear the officials will find other lawyers who will help the officials achieve their goals, whether those goals are lawful or not, rather than instructing them to follow the law.

Judge says "regret" at root of rape case

Administrators at the University of California San Diego failed to properly investigate sexual assault allegations against a male student and increased sanctions against him for appealing their decision, ruled superior court judge Joel Pressman on Friday, July 10. 

A female student accused the 20-year-old male, known as John Doe, of inappropriately touching her on the morning of February 1, 2014. The male student denied these allegations and later told an officer who was investigating the accusations that the two had had sex both the night before and after the alleged touching occurred. However, John Doe's statements to investigating officers, as well as other evidence, was not allowed to be presented during the Title IX sexual misconduct hearing.

"The Court finds that substantial evidence does not support the finding of non-consensual sexual activity," reads judge Pressman's July 10 ruling. "First, as stated above, crucial findings...were based upon [the officer's] investigation summary that was not presented at the hearing in any meaningful way. Given the fundamental unfairness of relying on this report without a meaningful opportunity for petitioner to challenge its contents, the court has no choice but to exclude the report from consideration in evaluating whether substantial evidence exists to support the conclusion."

Furthermore, ruled Pressman, "The only evidence presented in any meaningful way at the hearing was the testimony of [the woman]…. 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 [sic] not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe's personal regret for engaging in sexual activity beyond her boundaries."

Judge Pressman simultaneously found that the school's dean Sherry Mallory and the council of provosts increased the period that John Doe would be suspended from school each time he tried to appeal the board's decision.

Initially, the Title IX panel ordered that John Doe serve a semester suspension, avoid any contact with the woman, sexual harassment classes, and counseling. Doe, however, appealed their ruling to Mallory. In response, Mallory increased his suspension from a semester to an entire year, forcing the student to reapply to the school. The student then appealed to the council of provosts. They denied his appeal and added an additional semester to his year-long suspension.

"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," ruled Pressman.

The handling of sexual assault investigations has come under increased scrutiny at colleges across the country. Title IX grants colleges the authority to investigate and conduct hearings on alleged assaults. The hearings are not criminal hearings, but school administrators do have the authority to expel students. 

In April 2015, a male student at San Diego State University filed a lawsuit against the school for expelling him after a female student accused him of forced copulation. According to the complaint, the student, Francisco Sousa, was not allowed to provide text messages and other evidence that proved his innocence. He has since filed a claim with the California State University's risk management department, a prelude to a lawsuit.

Attorneys for the UCSD student celebrated Pressman's decision as a step in the right direction.
“It’s encouraging to see courts recognizing that sexual misconduct complaints on campus cannot be resolved at the expense of Constitutional rights and fundamental fairness,” said Mark Hathaway, an attorney for John Doe in a statement. 

“Colleges and universities must treat all students fairly, regardless of gender. All too often the male student is just presumed responsible and given no access to any campus resources. Hopefully Judge Pressman’s ruling will help correct the imbalance.”

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