Notre Dame stands to lose a Title IX case in an unusual flurry of kangaroo court blunders. It “investigated” the case and came away only with the female’s hostile emails, none of her loving ones (knowing that many emails were missing). When the male contemplated suicide, Notre Dame interpreted those thoughts as “dating violence,” and the male was denied a lawyer on grounds that the procedure was “educational” and not “punitive.” The “non-punitive” action cost him a lot of tuition money, banned him from taking two finals and got him expelled.
A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by the accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university.
A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by an accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university involved.
The specifics of the case were a little different from most due process cases. The couple had been in an ongoing relationship, for about a year. The male student (who I’ll call JD) suffered from depression in summer 2016, and this past fall, the accusing student (who I’ll call AS) decided to break things off after JD started sending her text talking about how he might commit suicide. She also reported JD to the Notre Dame Title IX office, which concluded that the texts constituted “dating violence,” since they purportedly manipulated AS.
The accusing student then indicated a desire not to move forward with any allegations and reconciled with JD, only to change her mind again and reinstitute charges. Notre Dame immediately issued a no-contact order between JD and AS, to which JD responded by deleting AS’s contact information, and all of the duo’s texts, from his phone. AS, on the other hand, retained their full text message history.
Notre Dame conducted an “investigation,” but for all practical purposes, AS was the university’s investigator—she turned over text messages from her cache, but only ones that made JD look bad. As Judge Simon explained, Notre Dame had no idea that—after AS first went to the Title IX office—AS identified as Jane by the judge:
told him to “Come overrrrrr.” [Id.] He proposed that they “take a nap” and she responded that “I‘M SO PUMPED.” [Id. (emphasis in original).] The following week, on November 7th, Jane asked John if he could sleep over. Jane then implored John to “Come to champaign” (sic), which seems to have been a reference to him meeting her in Champaign, Illinois. She also offered to meet him in Chicago. [Id.] Jane then asked John to come over that day because “she was having a really bad week already and I just wanna cuddle.” The following day they planned to get together again. Jane asked John “where you at (sic)” and he responded that he would “be there in 15 minutes.” Jane’s response demonstrated that she was happy to be seeing him. She said “yayyy.” The next day they planned to meet up again at Chipotle around the noon hour. And then later that night they must have planned another get-together because Jane told John that she was coming “to pick him up.” A week later, on November 15, Jane told John to “sleep overrrrrrrrrrr.” She later had a change of mind and canceled because she needed to study and he responded that that was no problem. John told her that he loved her and Jane responded that “I LOVE YOU TOO.” [emphasis in the original.]
Incredibly, Notre Dame never asked AS to turn over all text messages (which only came to light as part of the litigation). According to the complaint, Notre Dame also ignored copious exculpatory information, including a videotape of AS saying, “I want to fuck up his [JD’s] reputation; I want to make sure he never has a girlfriend . . . here or anywhere . . . and I want him never to be able to have a social life.”
At this stage of the lawsuit, JD asked for very narrow relief—that Notre Dame allows him to take his two remaining final exams, and give him grades for those courses. Simon granted that request. But the judge’s ruling also indicated grave concerns with three aspects of Notre Dame’s investigation, and his wording suggests this lawsuit could be very difficult for the university to win. He focused on three principal issues:
(1) Evidence. “The University’s investigation might have been arbitrary and capricious,” Simon noted, “for failing to obtain and review the entire context of the couple’s texting history.” Indeed, he added, “the text messages that . . . were not available to the Hearing Panel—text messages showing sleepovers, naps together, invitations to go on trips, and lunch dates—strongly suggest that Jane did not feel threatened or intimidated by John.” In some ways, Notre Dame’s conduct was more egregious than that of the foundational text-message case (Amherst), since here, the university knew that a text message history existed, and still didn’t ask for the whole file. AS conceded in a filing to the court. Her attorney, meanwhile, bizarrely claimed that the lawsuit had left her in threat of “physical” harm.
(2) Procedure. Simon criticized multiple aspects of Notre Dame’s procedure. He noted that the university essentially allowed AS to introduce character evidence but denied JD the same right, seemingly lest the accuser be traumatized. He questioned the university’s denial of direct cross-examination; Notre Dame instead used a “stilted method” of requiring JD to submit questions to the panel, which he hoped they would ask, not allowing “for immediate follow-up questions based on a witness’s answers, and stifling [his] presentation of his defense to the allegations.”
(3) Purpose. Judge Simon appeared baffled by the university’s decision (typical in these circumstances) to deny the accused student a lawyer. And he made clear he didn’t like the university’s response. When asked “why an attorney is not allowed to participate in the hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money—Mr. [Ryan] Willerton, the Director of the Office of Community Standards and a member of the Hearing Panel, told me it’s because he views this as an ‘educational’ process for the student, not a punitive one. This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”
This statement was a remarkable denunciation of the kangaroo court structure evident at most universities in sexual assault cases. While Simon termed his comments “conjectural,” it’s hard to see how his mind would be changed on these points, since the facts of Notre Dame’s procedures and text messages already have been established.
Will Notre Dame take from this rhetoric a need to settle? And, more broadly, will other judges learn from this impressively reasoned opinion?