Friday, July 18, 2014

Public interest law professor John Banzhaf: college men trying to reclaim due process rights

Still Another University Sued Over Rape Ruling // Judges May Soon Determine Procedures

An Amherst student is suing his college over its sudden determination to withhold his degree, and to rescind his fellowship just before graduation, even though the school had previously readmitted him following its own earlier investigation

Jul. 12, 2014 - WASHINGTON, D.C. -- This sudden reversal of its previous 2009 decision apparently occurred because the accuser “had recently called the college to express dissatisfaction with the handling” of the case, the lawsuit said.

So far, more than a dozen similar legal actions have been successful, and more than a dozen are now pending, says public interest law professor John Banzhaf, who first spotted the trend. Because so many of these law suits involve allegations of violations of Due Process, judges may soon begin determining exactly what procedures are required by the Constitution, taking these controversial issues out of the hands of both legislators and college administrators, he predicts.

"The Supreme Court has determined that judges - not legislators or regulators - have the final say in determining under the Constitution which procedural protections a person is entitled to, and has set forth a formula which requires that judges consider both the seriousness of the loss to the accused and the importance of the procedural protection for preventing that loss," says Banzhaf.

So, for example, if the accused faces little more than a order from the college preventing him from contact with a complainant, he is entitled to few protections. But, if he is to be expelled or prevented from graduating, the school must provide far more procedural protections, especially those which have been proven to be tremendously effective at preventing wrongful convictions.

In date rape proceedings, it seems quite likely that a court would rule that the accused must be granted the right to cross examine - what has been called the “greatest legal engine ever invented for the discovery of truth” - since there is often little if any evidence upon which to find guilt other than the words of the accuser. Indeed, given the seriousness of a wrongful conviction, and the skill needed to conduct a successful cross examination, courts may well rule that a student accused of date rape must be permitted to have his own attorney cross examine the complainant, says Banzhaf.

Banzhaf had successfully predicted that, as colleges were pressured by the federal government to increase the number of date rape convictions, male students would begin fighting back with legal actions.

He recently reported almost a dozen cases in which male students taking legal actions against their universities were successful. For example:

■ BROWN I - she didn’t remember the event, he said the sex was consensual, but was found guilty; was reported on TV as case of “When Yes Means No”; case settled by university
■ BROWN II - student charged the school interfered with his efforts to clear his name because of pressure from accuser’s father, an influential alum and a major donor; lawsuit settled by university
■ CENTRAL COLLEGE OF IOWA - After being forced to sue, two accused students have reached a private settlement in the case of an alleged rape
■ DENISON - accused passed lie detector test, was found guilty anyway by university, sued on ten different legal grounds including violation of rights; case settled by university
■ DUKE I - famous case involving lacrosse players, law suit charged conspiracy to fame players, and was settled by the university for an undisclosed amount
■ DUKE II - judge very recently prohibited university from expelling a student convicted of rape, because of alleged pressure on the campus tribunal to get tough on rapists
■ GEORGE WASHINGTON - was forced to settle a case where a former student sued the school for allegedly unfairly convicting him of sexual assault
■ HOLY CROSS - school policy held male responsible if both parties were drunk; university’s “responsible” finding was overturned; he was returned to school with no adverse mark on transcript
■ IOWA STATE - District judge issued a stay preventing university from booting accused from his team, after questioning the thoroughness of the university's investigation
■ OCCIDENTAL - order of stay granted by the court when the student complained about improper procedures and definitions used in the campus proceeding which convicted him
■ SAINT JOSEPH - federal judge upheld lawsuit brought by male student against university, a university employee, and even the female complainant, under several novel legal theories
■ UNIVERSITY OF THE SOUTH - jury ruled university was negligent in a case that found a student guilty of sexual assault, saying that it did not follow its own published procedures
■ XAVIER - judge upheld a law suit, based upon many different legal theories, by a male student against his university which had earlier found him guilty of rape; university then settled

Meanwhile, law suits filed by students convicted by their universities of rape and/or sexual assault are pending against Bucknell, Cincinnati, Columbia, Delaware State, Depauw, Drew, Kenyon, U of Michigan, Philadelphia U, Swarthmore, Vassar, Williams, and perhaps others.

Many more such legal challenges are likely to be brought as pressure from the President, several federal agencies, women's rights organizations, and individual women and groups on campus result in more findings of guilt where they may not be warranted by the facts and/or because the procedures used did not protect the accused student's rights, says Banzhaf.

A detailed study of campus sexual assaults suggests that they may have already cost colleges and universities more than $100 million, and the huge costs are almost certainly going to balloon as the Administration continues to pressure educational institutions to convict more students, notes Banzhaf, who was one of the first to point out the growing number of male students fighting back by going to court and/or videotaping their sexual encounters.

According to a Risk Research Bulletin put out by insurance company United Educators [UE], student-on-student sexual assaults - which UE termed “a perfect storm” of "alcohol, mental health, and sexual violence" - cost its members more than $36 million in losses from 2006-2010.

Since the UE represents only about 1,200 educational institutions - including independent schools and public school districts, as well as colleges and universities - and because the number of complaints and campus adjudicatory proceedings exploded only after that time period, it is likely that the sum of losses at all colleges and universities to date is much higher and will continue to grow, suggests Banzhaf.

Contact
GWU Law School
202 994-7229 / 703 527-8418
jbanzhaf@law.gwu.edu