Some of the older cases were focused on discrimination while the newer ones seem to be based on the negligence of the colleges to follow their own procedures and or breach of contract. On the flip side only a handful of title ix cases have been determined so in my opinion the outcomes of any of these are in the future and will tell us much more about which way the wind blows judicially…it is simply too early to draw any meaningful conclusions.
OK, we are back in my wheelhouse. If Hunt is around, he may be able to shed some further light on the numbers as well as I think he is a civil guy. But here is my take as a civil lawyer of far too many years.
1)It is difficult to draw conclusions from trial court decisions when you are talking about policy. Yes, if you see huge verdict numbers that may tell you something. But generally speaking, District Court judges try and keep their opinions narrow to the specific case before them, and often times don’t give clear guidance where the law is heading. This is especially true when you are talking about new/expanding areas of law, which this is. When the Circuit Courts of Appeal start to weigh in then we will likely see some more policy based decisions, and things will begin to become more clear. My guess is we are at least a couple years away from that point.
2)The five dismissals are obvious wins for the colleges, and may be wins for advocates of the broader interpretation of Title IX (see the first Columbia case). Again, it is hard to say how much of a precidential impact these five cases will have until we see what if anything is done with them in the Circuit Court of Appeals.
3)Generally it is hard to draw conclusions from the rate of dismissals without looking at the individual opinions dismissing the cases. For example, if you told me that my office would see a 7% rate of dismissal in Sec 1983 cases, I would freak out, because that would overload the office. I feel comfortable saying that far more of those cases are dismissed nationwide than 7%. On the other hand, if you told me that while I was in private practice we were seeing a 7% dismissal rate on products liability cases filed in state courts, I would raise my rates because that is a very high number. In short, the meaning of the 7% dismissal rate will depend entirely on how the courts are viewing these cases, something we won’t know until we start to see some appellate decisions. Just off the top of my head, and based on a couple decades in Federal Courts, a 7% dismissal rate is lower than I expected. Then again, no one knows what the he double hockey sticks is going on yet, so Judges may be overall more likely to let the cases play out. This will put the colleges in a bind as the case progresses.
4)The fact that the five reported decisions are all dismissals doesn’t mean that they are the only decisions reached by a Judge on these cases. I think it is fair to say that a number of these cases have seen Motions to Dismiss, and what we know is that five have been granted. Some number have then obviously been denied. Generally speaking a Judge won’t write an opinion for publication unless the decision disposes of at least a substantial portion of the case. In other words, we hear about the wins for the college at the motion to dismiss stage, but not the wins for the plaintiff.
5)I doubt seriously many of these cases will go to trial. As a civil defense lawyer, I would take a shot at a motion to dismiss, and a motion for summary judgment, and if I lost both I would think very hard about trying to settle. I say this because if the case survives those two stages, there are going to be some pretty bad facts for the college, or at least some facts that make it less than clear that the college acted appropriately. The jury is going to be asked to make a factual determination between big huge State University (or God forbid some hoity toity Ivy or LAC) and some poor little 20 something kid who had his life crushed in pursuit of the american dream. Not a great visual. Add to that that I would bet all the money in my pockets that the colleges will not have kept very good records, and will not have operated with anywhere near the deliberation of a court room, and they are going to look bad. You need to appreciate that most jurors, particularly in front of a good trial Judge, will begin to look to the Judge as the epitome of fairness. They will have been in the court room and seen the nature of the civil process, with witnesses, documents, the Judge ruling this way and that on objections, etc. Compare that to what we know of the college tribunal system and my guess is the college is going to look bad.
6)i don’t know how much the insurance companies have to say in these settlements. Some colleges are going to have right to control clauses in their policies, meaning they are paying a higher premium to have the right to appoint their own counsel and control the decision to settle. Some will not. I have no experience representing colleges, so I don’t know know how prevalent those policies are in that realm. There may be some coverage issues in general, meaning colleges may not have coverage for these cases at all. Those are questions we may never know the answers to.
7)If I had to guess, and assuming that we have a change in party in the white house at the next election, I would bet that we would see a voluntary change in policy from OCR before we really see a lot of law develop in this area. Courts just move slowly. It is one of the reasons pretty much all of the lawyers I am aware of on these threads have been advocating caution.
You are in theory correct, and make a good point, however, some of these cases are not incapacitated sex, but simply very drunk sex.
I can tell you from talking to my DD and DS that it happens all the time. I go to bars with my kids to hear a band that has kids we know in it. I can tell you that I see totally wasted guys who can barely function all the time and there are always girls hanging all over them trying to “engage” with them. I have no doubt that when they get to a more private setting that the girls don’t initiate sex.
Are they? I seem to remember mainly cases that were settled or cases that were not tried because an out of court settlement was reached.
We can disagree about whether the students were incapacitated, or merely very drunk. But JohnDoe talked about cases where a couple goes out to dinner and has a few drinks and then has sex, or where a husband has two or three cocktails and then has sex with his wife. That mild level of intoxication is nothing near the level seen in the actual cases we’ve been discussing. A BAC of .08, the legal limit for driving, is far in the rear view mirror for the young women in the cases we’ve heard about. Nobody has given an example of a case where a woman has two or three or four drinks, and then claims incapacitation, let alone a case where an adjudicator agrees with her.
@Ohiodad51, would you agree that if this assessment is correct (and I have no idea whether it is) the plaintiffs’ lawyers are finding that discrimination claims are not working? From this layperson’s view, the discrimination claims always looked bogus, and as a juror I’d be much more sympathetic to a due process or breach of contract claim.
@cardinalfang, how do we know that the women in the cases at issue are far more drunk than someone who blows a .08? You know the details of the cases far better than I do, but I thought in several there were examples of other witnesses who allegedly did not think the complainant was drunk, or where the complainant was texting/speaking with others after the event?That would seem to indicate that in least in those instances, the complainant was not obviously incapacitated.
In the cases I’ve read, the investigators documented drinking that would cause a BAC far, far in excess of .08. @TV4caster, what was the BAC you estimated for Oxy Jane Doe? Was it .25, or am I misremembering? I’m absolutely positive it wasn’t .08 or anything near it.
@“Cardinal Fang” I don’t know the details of the older cases, but I think it is logical to assume that the cases filed pre Dear Colleague Letter were more focused on discrimination. I say that because I don’t think the kind of due process cases we are seeing were really available in the absence of the OCR’s effort to move the schools in one direction. It is the action of the OCR that provides te predicate for the due process claims in other words. I also think it is logical to assume that these cases were not terribly successful because we didn’t hear a lot about them. Also, the argument you and @dstark make about men having access to the disciplinary tribunals is a pretty powerful counter to a discrimination suit. As long as the programs are facially neutral, the fact that more guys don;t use the procedure is not going to be seen as evidence of discrimination. So yeah, I would say it is a logical assumption.
I don’t know how persuasive the breach of contract claims are on their own. I would think a breach of contract case by itself would be difficult to press successfully. I think courts and juries want to see something they can identify as bad or wrong in these cases before they will find against the schools. A simple bare breach of contract case doesn’t get you there. Plus, there are probably any number of hurdles to a straight contract case between a student and a college that are not worth getting into here.
I can tell you from talking to my DD and DS that it happens all the time. I go to bars with my kids to hear a band that has kids we know in it. I can tell you that I see totally wasted guys who can barely function all the time and there are always girls hanging all over them trying to “engage” with them. I have no doubt that when they get to a more private setting that the girls don’t initiate sex.
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That may be so, but what I want is the proof that the young women at the bars who are all over drunk guys are representative of all college women. The claim was not that there exist college women who have had sex with incapacitated guys; the claim was that a “huge majority” of female undergraduates have had sex with an incapacitated guy. I don’t believe it for a second.
Here’s one, from http://yaledailynews.com/blog/2014/11/07/after-uwc-complaint-two-students-wait/ -
Sounds like the woman who filed charges said she had 4 drinks, maybe 5, and that made her incapacitated. The panel did rule that she was not incapacitated, but it seems like it was a close thing in their minds.
But who knows how much alcohol was in those drinks. Also, people are notoriously bad at keeping count of how much they had to drink unless they’re getting a bar tab. I will say that when I was in college we mostly drank very cheap beer. It seemed to me that girls who drank usually would stop after 3 or 4 beers. But they didn’t stop because they were getting too drunk; they stopped because they didn’t want to get fat.
@Cardinal Fang I agree, although I don’t remember whether he said “a couple”, “a few”, or “some drinks”, and I don’t feel like looking it up because it doesn’t really matter for the point I am about to make.
Obviously the amount of intoxication depends on a myriad of factors. Here is a BAC chart from “BRAD” (Be Responsible About Drinking’s website).
http://www.brad21.org/bac_charts.html
It only takes 5 oz of hard liquor (four 1.25 oz servings, which is a shot) for a 100 pound woman to reach a .20 BAC, which would be quite drunk. That is also assuming a standard 80 proof alcohol. If you mix in something stronger like a “151 rum” which goes into many drinks you would be talking just over 2 drinks.
That is about where I guessed it to be, yes.
It obviously depends on how you define incapacitated. I would bet a huge amount of money that a majority of college women have had sex with a very drunk male.
I doubt that there are huge numbers of college women (or men) who go around and sleep with members of the opposite sex who are puking or passed out, which I think is the type of incapacitated you are discussing here. On the other hand, are there college women and men sleeping with members of the opposite sex who are too drunk to drive at the time of the sexual act? Prior experience tells me yeah. When incapacitation is being defined subjectively (as it is in the surveys you like and in almost all of the college policies I have read), and you are using the preponderance of the evidence standard, it becomes awful hard to find the line between the two. But I think the point is that you can’t change the definition depending on who is making the claim. If a guy feels his inhibitions were lowered by three beers, and he was out of it so had sex with some random girl, well, then under your reasoning he would have a claim under most disciplinary tribunals, right?
@al2simon, I’m wondering about mediation. Which cases do you think would be appropriate for mediation, and which not? Would the accuser have to agree? Would you do investigation beforehand? Would you ever recommend mediation where you thought it would make the accuser worse off, even if it was better for the accused?
To me, the only obvious candidate for mediation, of the cases we’ve talked about, is the Occidental case, where John Doe was found responsible of non-consensual sex with incapacitated (or very drunk) and apparently consenting Jane Doe.
Even this case we’ve recently discussed, the SDSU case where the guy was found non responsible for sex with incapacitated Jane Roe the night before, but was found responsible for nonconsensual diddling the morning after, I can’t see how mediation would be better for Jane Roe. In the light most favorable to John Doe, Jane foolishly and naively got involved with a selfish, inconsiderate jerk. She needed intervention before she got involved-- how is mediation going to help?
@Ohiodad51, in these civil cases, either side can ask for a summary judgment, correct?
Wrong. Obviously, anyone can make a claim under any fanciful theory, but that doesn’t mean the accused student will be found responsible. If a student, either male or female, felt their inhibitions were lowered by three beers and tried to make a claim, they’d be laughed out. I defy you to produce a student who was found responsible for having sex with a person who was “incapacitated” by three beers, unless the beers had a roofie in them. If you think students are found responsible for having sex with people who were “incapacitated” with a BAC of .08, produce examples.
Define “very drunk” here. I’ll take your bet (providing your definition of “very drunk” is reasonable) but I don’t know how we could settle it.
ETA: Suppose we define “very drunk” as the level of intoxication of Oxy Jane Doe?