Wednesday, August 13, 2014

Ex-UMass student sues over expulsion in sex assault case

A former University of Massachusetts Amherst student who said he was expelled last fall over allegations he sexually assaulted a female student is suing the school, saying administrators unfairly and mistakenly found him responsible and discriminated against him because he is a man.

The suit, filed Thursday in US District Court in Springfield, said the university violated Title IX, a federal law banning gender discrimination on college campuses, when the student “was met with overall hostility, dismissal and pre-judgment as ‘guilty’ before the decision was even rendered.” The suit was filed under the pseudonym John Doe to protect the student’s identity.

“The university displayed a distressing lack of due process and rush to judgment, undermining the most basic tenets of our judicial system,” the student’s lawyer, Andrew T. Miltenberg, said in an e-mail.

The suit demands that the student be paid damages “in an amount to be determined at trial” and that the university reverse its decision and expunge his disciplinary record.

UMass Amherst declined to comment on the lawsuit, citing a university policy to not speak about specific cases in litigation.

“The university does take allegations of sexual assault seriously and conducts reviews through a detailed procedure specified in the Code of Student Conduct,” a statement from campus spokesman Edward Blaguszewski said.

Amid a rise in reports of sexual assaults at colleges, a growing number of alleged assailants — including at Amherst College, Brandeis University, and Brown University — have pushed back recently, appealing the school’s disciplinary rulings and filing lawsuits saying they have been falsely and unfairly accused.

UMass Amherst is one of more than 70 colleges under investigation by the US Department of Education about whether administrators have properly handled reports of sexual assaults.

The recent lawsuit against UMass Amherst contends that the male student, a Connecticut native and a sophomore at the time, met the female student, identified in the suit as Jane Doe, at a party in a friend’s dorm room.

During a night of drinking, playing card games, and dancing with friends, the two students became friendly and flirted, and she later invited him to her room to have sex, the lawsuit said. They had consensual sex, and the female student at no point showed signs of intoxication, according to the suit.

The next day, the female student could not remember what had happened, according to the lawsuit. At her roommate’s urging, the female student went to the campus health center for an evaluation. The following day, she filed a complaint with the dean of students’ office.

In her written complaint, she never called what happened harassment, assault, or rape, according to the lawsuit.

Three days later, the university told the male student he was under investigation for threatening behavior, sexual harassment, sexual misconduct, and violating community living standards, the lawsuit said. He was immediately ordered to move off campus and was barred from the premises except to attend classes, the lawsuit said.

Two months later, the university held a disciplinary hearing, the lawsuit said. But the male student had not been given copies of case documents beforehand, key pieces of evidence were not presented during the hearing, the male student was repeatedly interrupted, and questions he had were ignored, the suit said.

Two days later, the student was told he had been found “responsible” for three violations: “sexual harassment, sexual misconduct and community living standards,” and he would be expelled.

The student’s appeal was denied.

The suit said the student’s academic career is ruined and “his overall economic future is completely compromised.” He has suffered adverse health effects as a result of stress about the case, the lawsuit said.



California debates 'yes means yes' sex assault law

College students have heard a similar refrain for years in campaigns to stop sexual assault: No means no.

Now, as universities around the country that are facing pressure over the handling of rape allegations adopt policies to define consensual sex, California is poised to take it a step further. Lawmakers are considering what would be the first-in-the-nation measure requiring all colleges that receive public funds to set a standard for when "yes means yes."

Defining consensual sex is a growing trend by universities in an effort to do more to protect victims. From the University of California system to Yale, schools have been adopting standards to distinguish when consent was given for a sexual activity and when it was not.

Legislation passed by California's state Senate in May and coming before the Assembly this month would require all schools that receive public funds for student financial assistance to set a so-called "affirmative consent standard" that could be used in investigating and adjudicating sexual assault allegations. That would be defined as "an affirmative, unambiguous and conscious decision" by each party to engage in sexual activity.

Silence or lack of resistance does not constitute consent. The legislation says it's also not consent if the person is drunk, drugged, unconscious or asleep.

Lawmakers say consent can be nonverbal, and universities with similar policies have outlined examples as maybe a nod of the head or moving in closer to the person.

Several state legislatures, including Maryland, Texas and Connecticut, introduced bills in the past year to push colleges to do more after a White House task force reported that 1 in 5 female college students is a victim of sexual assault. The U.S. Education Department also took the unprecedented step of releasing the names of schools facing federal investigation for the way they handle sexual abuse allegations.

But no state legislation has gone as far as California's bill in requiring a consent standard.

Critics say the state is overstepping its bounds. The Los Angeles Times in an editorial after the bill passed the state Senate 27-4 wrote that it raises questions as to whether it is "reasonable" or "enforceable." The legislation is based on the White House task force's recommendations.

"It seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms," the newspaper said.

Some fear navigating the murky waters of consent spells trouble for universities.

"Frequently these cases involve two individuals, both of whom maybe were under the influence of alcohol or drugs, and it can be very tricky to ascertain whether consent was obtained," said Ada Meloy, general counsel of the American Council on Education, which represents college presidents.

She said schools need to guarantee a safe environment for students, while law enforcement is best suited for handling more serious sexual assault cases.

John F. Banzhaf III, a George Washington University's Law School professor, believes having university disciplinary panels interpret vague cues and body language will open the door for more lawsuits.

The legal definition of rape in most states means the perpetrator used force or the threat of force against the victim, but the California legislation could set the stage in which both parties could accuse each other of sexual assault, he said.

"This bill would very, very radically change the definition of rape," he said.

University of California at Berkeley student Meghan Warner, 20, said that's a good thing. She said she was sexually assaulted during her freshman year by two men at a fraternity but didn't report it because she believed "that unless it was a stranger at night with a weapon who attacked you when you were walking home, that it wasn't rape. It's just a crappy thing that happened." She now runs campus workshops to teach students what constitutes consent.

"Most students don't know what consent is," she said. "I've asked at the workshops how many people think if a girl is blacked out drunk that it's OK to have sex with her. The amount of people who raised their hands was just startling."

Defining consent may be easy to do on paper, said Laura Nguyen, a 21-year-old San Diego State University senior, but "we're talking about college students out at night and the reality is there's not just 'yes' or 'no.' There is a lot of in between. I really think it depends on the situation."

The legislation initially stated that "if there is confusion as to whether a person has consented or continues to consent to sexual activity, it is essential that the participants stop the activity until the confusion can be clearly resolved."

After some interpreted that as asking people to stop after each kiss to get a verbal agreement before going to the next level, the bill was amended to say consent must be "ongoing" and "can be revoked at any time."

"California needs to provide our students with education, resources, consistent policies and justice so that the system is not stacked against survivors," state Sen. Kevin de Leon, a Los Angeles Democrat, said in promoting the bill.

Supporters say investigators would have to determine whether consent had been given by both parties instead of focusing on whether the complainant resisted or said no.

Denice Labertew of the California Coalition Against Sexual Assault said the bill fosters a cultural change: "There's a lot of criticism around affirmative consent because it requires us to change the way we normally think about this."


Trojan Horse: new rules ‘could curtail teaching of Christianity’, warns Christian group

Teachers could be restricted from teaching traditional Christian values in independent schools because of new rules designed to combat Islamic extremism, it has been claimed.

The Christian Institute is preparing a legal challenge to proposed new regulations issued following the so-called Trojan Horse scandal involving hard-line Muslim groups attempting to take control of schools in Birmingham.

It argues that “completely ambiguous language” in the new guidelines could be used to clamp down on schools teaching anything deemed politically incorrect on issues such as marriage.

Under plans unveiled by Michael Gove, the former Education Secretary, in June, more than 20,000 schools in England will be forced to promote “British values” such as democracy, individual liberty and tolerance.

It followed a series of damning inspection reports warning of a “culture of fear and intimidation” in schools, with governors exerting “inappropriate influence” over how they are being run.

Lawyers for the Institute are considering bringing judicial review proceedings to challenge a consultation on the new guidelines, arguing that it was unfair as it took place during the school summer holidays.

The group fears that the wording of the updated regulations could be seized upon by political campaign groups in an attempt to stamp out the teaching of anything deemed traditionalist for fear of causing offence.

Under the updated guidelines children’s progress must be assessed in line with “national norms” rather than “the school’s own aims”, which were permitted under the previous regulations.

The Institute believes that the clause could be used to force schools to introduce gender neutral terminology rather than phrases such as “mother” and “father” or even to limit teaching about Christmas for fear of upsetting followers of other faiths.

“This is a classic case of the Government over reacting to a perceived problem.,” said Colin Hart, chief executive of the Christian institute.

“They are shocking in their breadth and range and would destroy the independent sector.  “They mistakenly advance the principle that political correctness equal British values.

“Accordingly they could be used to punish any school in the independent sector which has a religious ethos, a set of traditional beliefs, or who don’t over promote every minority groups world view.”

He added: “The problem occurs when completely ambiguous language is used to impose a new set of values on millions of children.

“The term ‘national norms’ does not actually mean anything.

“It will be interpreted by every school inspector and used by a handful of aggressive campaign groups to challenge schools with traditional views and values.

“In some cases this could mean attacks on gender specific terms like mother and father, or attacking those institutions with a clear religious ethos and set of values. Christian school that celebrate Christmas and Easter could well be early targets.”

But a spokeswoman for the Department for Education said: “The Independent School Standards are designed to ensure every school prepares children for life in modern Britain.  “We make no apology for demanding high standards and the promotion of tolerance and respect of all faiths and cultures.

“It is simply untrue to say that the proposed changes – which received 1,400 responses in the last six weeks – would prevent teachers using gender-specific terms or require schools to downgrade Christian festivals.

“We have received a letter from the Christian Institute’s legal representatives and are considering our response.”


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