My colleague Justin Dillon has won a major victory against George Mason University. You can read the 45-page opinion granting summary judgment to the plaintiff (the accused and expelled young man) here:
Important point to note: T core argument in this case is predicated on the fact that George Mason is a public school, and thus has a constitutional obligation to provide due process that private schools do not.
Another interesting point, that IS generalizable to private schools, is that the accuser was not a GMU student.
Finally, the court has not yet decided what the remedy will be, so we don’t know yet whether the student will be reinstated, have the discipline wiped from his transcript, win a monetary award, etc. Whatever the remedy, I expect GMU to appeal to the Fourth Circuit, but that will take months or years.
Holy Moly! :-t
I started to read the above linked opinion, and by page 3 we’re deep into BDSM, self mutilation, weapons on campus, secret recordings…holy moly! X_X
I have another Title IX case involving BDSM, which mirrors this one in several ways – the accuser says that she kept going back for months of repeated rapes and nonconsensual beatings, and she only accused the boyfriend of misconduct after he broke up with her (or in the GMU case, was caught cheating on her, leading to a breakup). My student was also expelled.
I expect we’ll see a lot more of these cases post-Shades-of-Grey. Obviously people have been doing these acts for centuries, but they’ve gotten more mainstream and people generally like to imitate what they see in the movies.
This is an outrage. What unspeakable hypocrisy and betrayal it is for universities to say that they are not required to follow the Constitution because they are private institutions.
And how disgraceful as well that these universities don’t even pause to consider the effect of their actions on the women who suffer genuine assaults. I’m not being hyperbolic at all, this is really an outrage.
Is $245,000 really that high? Seems a bit low to me.
[quote]
“They disregarded rules that they were required to follow. It was the individuals failing at multiple turns, intentionally and in a very biased fashion,” Paoli says.quote]
Sounds a bit like the case Hanna just posted; the plaintiffs lawyers would go after the university (and the principles involved) based on not following the documented process.
"Regardless, Krakauer says the university “bent over backwards to be fair to Johnson.”
“The woman he allegedly raped is the person who was treated unfairly in this case, as the U.S. Department of Justice made clear after thoroughly investigating the matter,” he says in a statement. “If anyone should have received a big settlement, it was Johnson’s victim.”
Krakauer says he is “extremely disappointed” by the state’s decision not to defend itself in court, and that the strategy encourages other students charged with rape to sue the state, regardless of whether the students are guilty as charged. It also raises the stakes of Krakauer’s pending case before the Montana Supreme Court to force the release of records surrounding Johnson’s hearing.
“Montanans have a constitutional right to know why Johnson’s expulsion was overturned by the commissioner,” Krakauer says, “and why they are now on the hook for paying Johnson a quarter of a million dollars—even though he seemingly received preferential treatment for being a star athlete.”"
$245,000 is a fairly big number. Two things to keep in mind in looking at these types of settlements. One, actual damage is hard to prove, meaning that no one is going to be able to say that getting kicked out of the school resulted in X amount of monetary loss. Large settlements are often driven by significant medical expenses, loss of earning capacity, etc which allows lawyers to “blackboard” significant numbers as a starting point for damages. Two, Montana is not a state where you traditionally see very high personal injury awards. So with those two factors, yeah $245k is significant.
I think $245,000 is high in comparison to other known settlements in similar situations, You could also make the case that had Jordan Johnson not been expelled and had he been drafted by and played successfully for an NFL team he would had made millions. But that’s a lot of “what ifs.”
There was a criminal trial so it would have been tough to separate the reputational damage from that as well.
I think it is interesting that Krakauer all but says Johnson is guilty in his comments despite an acquittal, a reversal on the expulsion and now a legal settlement by the state.
"U.S. District Judge T.S. Ellis III wrote in a Feb. 25, 2016 opinion that university officials lead Doe to believe he was accused of sexual violence for one specific incident, while actually punishing him for other allegations — thus denying Doe a chance to adequately defend himself against multiple charges.
What is clear is that Doe must now be reinstated at GMU, a public university based in Fairfax, Virginia. But beyond that, it’s unknown what will come next."
Doe’s Title IX discrimination case was dismissed; his victory came from suing based on a violation of his right to due process.
To be sure, Doe sounds like a jerk, and maybe GMU was right to get him off campus. If they had let him know prior acts were being taken into the appeal consideration, the case probably never would have succeeded.
How about this quote:
"The university held a 10-hour hearing in September 2014 that focused on the Oct. 27 encounter, finding Doe not responsible on all counts. According to the judge’s opinion filing, Roe appealed, and Ericson assigned himself the case, despite his previous communications with Roe.
Ericson conceded that by the time he met with Doe during the appeal process, he’d already determined he would find him guilty."
I’ve been listening to Missoula in the car. He is very convincing. Kirsten Pabst emerges as a nasty piece of work.
The thing he does for me is shed a lot of light on what goes on, physically and mentally, with victims, especially victims who have put themselves or allowed themselves to be put in a “compromising position” before the rape.
It is hard to make the case Jordan Johnson could have made the NFL.
He was given a shot to play professional football in Canada. He was cut. So, one his expulsion did not stop him from having a shot at playing professional football. Two, he is not good enough.
@Consolation, I agree with you. There is a thread about the book. I wrote what you wrote.
Well, this one is a first for me. USC suspended a student for failing to intervene when third parties got involved in his sexual encounter with a fellow student. In other words, the school said that his sex act was consensual, but suspended him because two of his buddies slapped her on the butt. The California court of appeals found that both the evidence and the process were insufficient to justify the punishment.
She repeatedly said that she consented to the sex with John on both occasions. Students 1 and 2 didn’t go to USC, and they’re the ones that assaulted her, according to her version of the facts. That’s why it’s so bizarre that USC suspended John for not protecting her from these third parties. We have no idea if she went to the police about them assaulting her, since that would be the only recourse.
