This University Is Going to Pay Big Money for Ignoring a Student’s Rights

James Madison University, a public university in Virginia’s Shenandoah Valley, is probably not a school you would think of as one where rampaging ideology against male students would lead to a huge legal fight. But that’s what happened a few years ago. Now, a student who was wrongfully punished is on the verge of collecting almost $850,000 from the university.

The case is like many others ­— a “hookup” between college students that ended in anger, with the woman using the Obama-era sexual assault rules for revenge. The man (“John Doe”) met the woman (“Jane Roe”) in August 2014 when both were incoming students at JMU. They had sex one night and exchanged friendly communications for days. The two “hung out” together and had sex again the following week.

One evening thereafter, Roe went to Doe’s room carrying her pillow and blanket but was shocked to find another woman sitting on Doe’s bed. She left in a huff and a few days later filed charges against Doe for sexual misconduct. She claimed that at the time of their first encounter, she had been too intoxicated to consent to sex. Their hookup, therefore, amounted to rape. She wanted Doe punished.

In December, a JMU disciplinary panel heard the arguments, considered the evidence, and decided that Doe was not responsible for any wrongdoing.

That ought to have been the end of the matter, but Ms. Roe was not happy about the outcome, so she asked for another hearing. Rather than saying, “No, the case is closed,” JMU decided to put Doe through what would amount to illegal double jeopardy if this were a case before our criminal courts. It convened another panel, consisting of three professors who listened to new evidence Roe claimed was pertinent, while not permitting Doe to contest any of it.

Despite an abundance of evidence from the first hearing that Roe had not been intoxicated that first night, the second panel decided, in accordance with the Obama-era mantra of the Education Department’s Office for Civil Rights (OCR), that “the accuser should be believed.” It summarily declared that Doe had violated JMU’s policy against sexual assault and ordered that he be suspended from the university for five years. He could then reapply, but only if he had undergone an “education/counseling program.”

Doe was not allowed to contest that decision.

Bear in mind that from 2011 to the end of the Obama administration, the OCR was putting heavy pressure on colleges to implement procedures meant to maximize the number of successful complaints of sexual harassment and assault. They were expected to use pro-accuser policies (such as not allowing the accused to challenge evidence and to employ the lowest possible standard of proof of guilt). This case gave JMU an opportunity to shine. Its punishment of Doe was just what the overlords in Washington, D.C. wanted to see.

What the university did not count on was a vigorous counter-attack by the maligned Mr. Doe, who was out of school and bore the stigma of a rapist.

He filed suit against JMU, arguing that it had failed to live up to its self-declared obligation to provide all students with fair and equitable procedures when accused of violating school regulations.

The case was heard by federal judge Elizabeth Dillon, who ruled in 2016 that the university had violated Doe’s rights.

Judge Dillon focused on the second stage of the disciplinary process, writing “There JMU subjected him to a second fact-finding trial but severely limited his ability to defend himself. Specifically, she found:

  • It did not give him sufficient notice of, or time to respond to, Roe’s new evidence.
  • It did not provide him with details about the unnamed girl whom Roe’s suitemate accused him of sexually assaulting—an accusation not raised before the hearing board but presented to the appeal board.
  • It did not allow him to contact Roe’s roommate, whom Roe and her suitemate accused of lying before the hearing panel.
  • It did not tell him the names of the appeal board’s members.
  • It did not give him prior notice of the appeal board’s meeting.
  • It did not permit him to attend the appeal board’s meeting.

Conversely, JMU bent over backward to accommodate Roe, such as granting her time extensions for submitting new evidence. Judge Dillon, therefore, refused to dismiss the procedural due process case against JMU in December of 2016, and the following April followed up with an order that Doe be reinstated, and his record as a sexual predator be expunged.

But that left the matter of legal costs unresolved. Judge Dillon turned that over to U.S. Magistrate Judge Joel Hoppe who ruled on January 31, 2018, that JMU must pay over $849,000 in legal expenses Doe incurred.

Writing about the battle over costs in this piece, Heritage Foundation’s Hans von Spakovsky and Sarah Williams state, “The same intransigence and refusal to recognize its wrongdoing that was evident in the original case has been present in the court fight over these legal costs. JMU rejected numerous attempts to settle the case despite its plain and obvious mishandling of the sexual-assault claim. Judge Hoppe points out that while JMU claimed Doe’s request was too high because Doe’s attorneys ‘overstaffed the case, were inefficient, and duplicated each other’s work,’ JMU did ‘not offer any specific support for this position.’”

There are two reasons why this case matters.

First, it shows that American courts still recognize that due process of law for every accused person is vitally important – even male college students accused of sexual assault.

Second, it provides a warning to those colleges and universities that have decided to stick with the Obama-era procedures that Judge Dillon (and many other legal scholars) are likely to overturn ad hoc university decisions in favor of the U.S. Constitution. Following Education Secretary Betsy DeVos’ announcement that she was rescinding the OCR “guidance” that led colleges to abandon due process when it came to male students accused of sexual assault, a number of institutions declared, apparently out of a feeling of righteous resistance to Trump, that they would continue to abide by the old policies.

In this article by Ashe Schow, we read that Yale stated that it has “no plans to deviate from the Obama-era policies after alumni urged campus administrators to resist changes.” Similarly, Cal State-Northridge said that it would “not waver in our commitment to Title IX and its protections.”

Rhetoric like that sounds wonderful in “progressive” ears but being unfair to accused men does nothing to protect women on campus. What those policies accomplish is to encourage the abuse of disciplinary processes by students who want revenge against others who have scorned or angered them.

In a way, we should applaud any college that asserts its independence from Washington. The Department of Education shouldn’t dictate policies to them, on the handling of sexual assault cases or anything else. But schools that feel the need to keep using procedures that are stacked in favor of accusers should think about the possible costs of doing so. The bad publicity and high financial cost to James Madison University are, as educators like to say, a teachable moment.

George Leef

George Leef is Director of Research for the John W. Pope Center for Higher Education Policy.

4 thoughts on “This University Is Going to Pay Big Money for Ignoring a Student’s Rights

  1. “Following Education Secretary Betsy DeVos’ announcement that she was rescinding the OCR “guidance” that led colleges to abandon due process when it came to male students accused of sexual assault, a number of institutions declared, apparently out of a feeling of righteous resistance to Trump, that they would continue to abide by the old policies.”

    Academia’s effort to retain these standards has nothing to do with Trump, they’re keeping them because they want them. The Dear Colleague letter was collusion, a gambit related to the Sue and Settle strategy used by the EPA. University radicals couldn’t justify their policy preferences on the merits so they had an ally in the government “threaten” them with losing federal funds. Instantly anything became possible under the guise of risk management and they never had to risk credibility or take criticism for the absurd policy.

    Their choice to retain the policy now proves Academia supported the plan all along.

  2. I’m a taxpayer in Virginia.

    That’s means I AM PAYING this.

    I want those involved to bear the costs of their malfeasance!

  3. No, the first hearing should not have been the end of the matter — it should have been followed by prosecution of Roe for making the false accusation.

  4. How many college students actually have $840,000 to hire a lawyer with in the first place? It’s so expensive to sue a college that they know almost no one ever will and that’s why they get away with this stuff.

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