Aside from hearings and some tough questions, Congress has done nothing to end the reign of terror by the Department of Education’s Office of Civil Rights in its unlawful extension of authority from ending gender discrimination in education to seizing control over sexual relations, and the flagrantly discriminatory manner of adjudicating sex on campus. So much demagoguery. So little action. So much harm left unresolved.
While there have been successes in individual litigation reviewing the failings of colleges to provide basic due process in its handling of campus sex, there has not been a direct attack on OCR for its pseudo-imposition of its own rules on colleges. While OCR denies its “Dear Colleague” letter, threatening loss of funding if schools don’t abandon any pretense of fairness, are unlawful rules, but merely “guidance,” schools claim that they have no choice but to condemn the accused to predetermined guilt and punishment because “rules.” Then again, it’s not like any college in America has challenged OCR’s authority to demand that they hang male students out to dry.
The fundamental impropriety of OCR’s “social engineering” has escaped congressional action, but may no longer be able to escape legal scrutiny. In a press release, it was announced that Andrew Miltenberg, who has been at the forefront of litigating on behalf of students accused of rape and sexual assault, has named the DoE OCR as a defendant.
Grant Neal, a prominent student athlete at Colorado State University Pueblo (CSU Pueblo), has filed a first-of-its-kind lawsuit against the Obama Administration’s Department of Education Office of Civil Rights (OCR) and CSU Pueblo for violation of Title IX in a wrongful sexual assault investigation. Neal is being represented by Andrew T. Miltenberg, one of the nation’s preeminent attorneys specializing in campus assault due process.
Will this be the case to finally end OCR’s reign of terror? Putting together the right case, the right set of facts with a lawyer capable of bringing down a rogue government agency, isn’t easy. But there’s no doubt Miltenberg is the lawyer with the knowledge, dedication and skills to do the job.* As for Grant Neal’s case, it could not tee up the ball any better. Robby Soave at Reason gives the details:
Neal’s expulsion (it’s silly to call it a “suspension”; multi-year suspensions are expulsions) stemmed from his allegedly improper sexual relationship with a female student and athletic trainer, Jane Doe. In the fall of 2015, Neal was a sophomore at CSUP: he and Doe became good friends and eventually developed romantic feelings for each other. Sexual relationships between athletes and trainers are frowned upon, however, so they first attempted to remain friends.
On October 23, they went to the movies together. Afterward, they kissed and engaged in consensual sexual behavior. They did so the following evening as well. These were not drunken hookups: these were mutually-agreed upon encounters, according to the details in the lawsuit.
Aside from there being a generic issue with trainers and athletes having relationships, this was a perfectly ordinary story of romance. As in, happy, healthy and consensual.
The hickey was indeed noticed by another trainer, described as the “Complainant” in the lawsuit. When confronted, Doe confessed to the Complainant that she and Dean had engaged in sex. According to the lawsuit, the Complainant “presumed” this sex was nonconsensual, and reported it to the director of the athletic training program.
This is where the case takes a dive down the rabbit hole. Doe makes no complaint. Indeed, Doe makes it absolutely clear that the sex was consensual. There was no rape. There was no offense. And that meant . . . nothing to the Complainant, who apparently decide that her perception of other people’s sex mattered more than the perception of the woman who was actually engaging in it.
And so the Complainant did what complainants can’t help themselves from doing when there is someone else happily having consensual sex: she complained. And from there, OCR’s “guidance” took over.
The details of the adjudication process will be familiar to anyone who has read my other reports on sexual misconduct “disputes” (“dispute” being an increasingly odd word to use, given that I’ve now covered two consecutive cases where the “victims” agreed with the accused that their sex was consensual). He was denied full knowledge of the charges against him, presumed to be guilty from the outset, and could not cross-examine witnesses. He was suspended on an interim basis before the hearing could even take place.
The adjudicator—Defendant Roosevelt Wilson, who is named in the lawsuit—even refused to interview witnesses who would have corroborated Neal’s account. “Defendant Wilson professed that he was in charge of the investigation and would be the only person to declare someone a witness in this matter,” according to the lawsuit.
The predetermined outcome for Neal was a guilty verdict: he was suspended for the remainder of Doe’s time at the university.
As absurd as this may appear to the unfamiliar, this bizarre process is the natural outgrowth of the laundry list of excuses used to rationalize the equally long laundry list of failings of accusers in campus adjudications. In other words, to comport with OCR’s dictates, colleges have (willingly) adopted a rationalization system that tolerates neither logic nor reason when it comes to assuring that the accused is found guilty. Yes, it’s that crazy, that biased, that unfair in both process and outcome.
While there was another pre-emptive announcement of an effort to go head to head with OCR by FIRE, the Foundation for Individual Rights in Education, the significance of this action to take down the Office of Civil Rights and its Queen, Catherine Lhamon, can’t be understated. This is a battle that not only must be won, but can’t be lost. If the outcome validates OCR’s channeling of Coitus Kafka, the threat to the accused on campus may prove unstoppable.
The Grant Neal case presents both the right fact pattern and the right lawyer to make the best possible challenge to this nightmarish threat to young men on campus. Despite FIRE’s good intentions, its approach is dubious, lacking the legal acumen of a lawyer of Miltenberg’s proven experience and motivations to take on such an important battle. As much as the right lawyer is critical to prevail, the wrong lawyer is equally critical in the harm that an adverse ruling could cause.
FIRE would do well to throw its support behind this case, in the interest of all accuseds on campus who would suffer terribly should the effort fail and produce law that could fundamentally destroy due process on campus. The Neal case offers the best opportunity to bring down OCR.
The lawsuit was filed today. I will be eagerly anticipating the federal government’s response. What happened at CSUP was nothing short of a scandal: a cabal of vicious, sex-negative administrators ruined a young man’s life and told a young woman she has no sexual agency. This is the world according to Title IX.
It’s time to end the tyranny of Title IX under Lhamon’s OCR. This is the case. This is the lawyer. This is the right battle, and it must be won.
*I have requested a copy of the complaint from Miltenberg, and will add it when it’s available.
Update: Just in from Andrew Miltenberg, the Grant Neal complaint.