Judge Hammers Penn State a Second Time For Its Treatment of Students Under Title IX

Says the school failed to follow policies it supposedly put in place after his first rebuke.

Since the federal government began its assault on campus due process in April 2011, hundreds of students accused of sexual misconduct on campus have filed lawsuits alleging they were denied a fair shake in their universities' adjudication of those claims.

One university—Penn State—has now been rebuked twice by the same judge for its shoddy treatment of students accused of sexual misconduct. In a ruling issued just last week by Judge Matthew Brann, an Obama appointee, Brann indicated university administrators may be ignoring policies they put in place following the first suit.

In 2015, Brann granted a temporary restraining order preventing Penn State from enforcing a punishment that could have resulted in a student's deportation to Syria in the midst of that country's civil war. Brann enjoined Penn State from enforcing the student's suspension, saying the student was "reasonably likely to succeed on the merits" of his constitutional due process claim against the university, and that he would "face the potential for serious bodily harm and related injuries" if he lost his student visa and was deported to Syria.

The most recent suit, brought by plaintiff "John Doe," stems from alleged unwanted sexual contact on September 7, 2016. Doe and his accuser, "Jane Doe," were both students in a special pre-med/medical program at Penn State. According to a text message that Jane sent her roommate,John forcibly put his finger inside Jane's vagina, leaving her "bleeding a little."

As in so many of these cases, Jane's and John's accounts of what happened vary dramatically. According to John, there was no digital penetration; it was Jane who made the sexual advances and was hurt and upset that he had rejected them.

Jane filed a sexual misconduct complaint with the university, and in June 2017, a Title IX hearing panel found John responsible and suspended him from the university. Since there were no witnesses, this case turns—as so many such cases do—on the credibility of the two parties.

But according to John's complaint, university administrators denied him the ability to effectively challenge Jane's credibility, refusing to ask many of the questions he submitted for cross-examination (Like many schools, Penn State's process for cross-examination in sexual misconduct cases involves submitting proposed questions to be asked by the hearing panel).

John was not able to ask why Jane had never provided the university with the medical report she received when she had gone for a medical examination in the days following the incident—a detail that Jane only revealed to the university's investigator months into the investigation. Given Jane's claim of physical injury from her encounter with John, that report was highly relevant. The hearing panel, however, refused to ask Jane any questions about it, labeling it "new information" and "irrelevant."

Brann disagreed. Noting "the importance of cross-examination when the outcome of a disciplinary hearing is ultimately dependent on credibility-based determinations," Brann ruled that "Penn State's failure to ask the questions submitted by Doe may contribute to a violation of Doe's right to due process as a 'significant and unfair deviation' from its procedures."

Brann also criticized the university for failing to provide the hearing panel with the investigator's report five days in advance of the hearing as required by university policy. The university's investigator had also redacted statements John had made in his defense from her final report, depriving the hearing panel of the opportunity to consider those statements.

When adjudicating claims of student misconduct, sexual or otherwise, a university's goal should be to ascertain, to the best of its ability, the truth about what actually happened. Yet so many institutions take steps—such as excluding important evidence and refusing to consider relevant new information—that serve only to obfuscate the truth.

At least eleven new student due process lawsuits have been filed in the past two months alone. Until universities reform their hearing processes, this flurry of litigation by accused students is certain to continue.