Penn State’s Contemptible Do-Over

In obtaining an injunction from United States District Judge for the Middle District of Pennsylvania, Matthew Brann, on behalf of a Penn State pre-med student found responsible for sexual assault, lawyers for John Doe, the male student burned by Penn State, learned that he should anticipate a positive determination going forward. There was a “likelihood” that he would prevail on the merits.

Penn State understood that part of the decision too.

A three-member Title IX panel in June found Doe violated the Student Code of Conduct by engaging in nonconsensual sex with a coed in the same seven-year pre-med program that is affiliated with Thomas Jefferson University in Philadelphia. He denies the allegations.

Brann, in granting the preliminary injunction , found Penn State had violated its procedures in adjudicating Doe and he had the likelihood of success in his due process claims.

If you’re the attorney for John Doe, having raised the full panoply of due process failures, from the investigation carefully designed to burn the accused to the denial of due process at the hearing, this relief is huge. If you’re the federal judge before whom the case is pending, you’ve foreshadowed the outcome and told the defendants that they blew it. Just how badly has yet to be determined, but it won’t be pretty.

But if you’re a college administrator or lawyer, where the sanctuary of the campus is like an independent world where the laws that constrain the lesser people don’t apply, you tee up a Mulligan and take another swing at your leisure. After all, who is this federal judge to you that the almighty college doesn’t get to control its own campus?

The contempt motion cites a Sept. 25 email Shaha sent Doe stating the university had withdrawn the panel’s finding of responsibility and sanctions and a new Title IX decision panel will be convened.

Penn State claims it will address concerns Brann expressed in his order by conducting a new hearing.

“Address concerns” isn’t quite how this works, although such a wiggly description might give the appearance that Penn State will “fix” what it did so terribly wrong the first time. The first issue is that there is no mechanism by which Penn State can simply vacate its prior determination and go for two.

Following the June 27, 2017 denial, Plaintiff’s case was over in the eyes of Penn State. This is simply no mechanism for which Defendants and Danny Shaha can justify their outrageous conduct in attempting to sua sponte vacate the decision and conduct a new hearing. Could the Plaintiff sua sponte vacate the findings and order a new hearing for himself, I don’t think so. The procedures clearly and unambiguously state no further review will occur. Besides Defendants contempt of this Court, Defendants and Mr. Shaha have no authority to retry the Plaintiff.

Losing in federal court on the motion for injunctive relief doesn’t change this. If anything, the fact that Penn State is under federal jurisdiction in this matter precludes the college from coming up with a new scheme to circumvent the authority of Judge Brann.

But beyond the absence of any procedural authority to take this action, it fails to “address concerns” that have yet to be the subject of the court’s ruling.

In their attempt to circumvent this Court’s holdings, Defendants and Danny Shaha have at best grossly misinterpreted the hearing testimony and more importantly this Court’s findings as to full extent of the Defendants Due Process violations perpetrated upon the Plaintiff.

Initially, Mr. Shaha in his September 25, 2017 e-mail lists several areas Defendants will alter in their second go around to suspend the Plaintiff. This time, Defendants will submit Plaintiff’s “unredacted” response to charge. However, Defendants fully intend to submit the reminder of the 77-page redacted Investigative Report as the basis for their charges. (See Exhibit” F”).

Defendants, Defendants counsel and Mr. Shaha blatantly ignore Your Honor’s findings in their unilateral attempt to cure what they perceive to be the deficiencies found by the Court. Defendants’ counsel’s justification for the “second panel hearing” (See Exhibit “M”) is that “The University has determined that it will address these issues that were the focus of Judge Brann’s order by conducting a new hearing that ameliorates those issues”. (Emphasis added).

As the court has yet to determine all the due process failures and improper actions engaged in by Penn State in its handling of this accused, the contention is that it can, after only being forewarned that it has failed and will, in all likelihood, lose, decide for itself what changes it wants to make to “ameliorate” those issues. You can’t cure what you don’t know. Unless you wrap yourself in fuzzy vagaries to cover your tracks.

In response to Plaintiff’s counsel’s inquiry, Defendants’ counsel replied that the University’s decision to attempt to conduct a “second panel hearing” is “consistent with the underpinnings of the University’s Code of Conduct, which include the need to: a) maintain a civil and safe community in which all Penn Staters can live and learn; b) administer a disciplinary process that is designed to foster growth and learning through holding students accountable for their behavior; and c) create a community in which students’ actions reflect the essential values of Penn State University, namely: Community, Discovery, Excellence, Integrity, Respect,

Who doesn’t get goose bumps at the mere mention of a string of inspirational words that imposing undeserved discipline serves to “foster growth and learning” through punishment? The plaintiff’s lawyers, for one, and a federal judge, for another.

In fairness, Penn State’s attempt to game Judge Brann’s authority is an imaginative ploy.* Upon the slightest whiff of a coming spanking, the college could simply moot the issue by putting on a new play with some minor change in process. And if the next hearing deprives the accused of due process as well, then another hearing. And another. Each serving to circumvent judicial review of their failures.

From the plaintiff’s side, this would serve to keep him under constant constraint, hold him under threat of discipline and force him to go back to federal court each time for review of the latest dog-and-pony-show effort to wear him down, all the while denying the accused his education. It’s a cool trick if they can get away with it.

Judge Brann, whose authority to determine a case and controversy before him in its entirety is being usurped by college administrators who feel no compulsion to be subject to scrutiny, should shut this scheme down. With extreme prejudice. Not even the mighty Nittany Lions get to ignore and circumvent the orders of a federal judge.

*To the extent Penn State might claim its second hearing is a good-faith attempt to fix its mistakes, they could have gone to Judge Brann, informed him of their intentions and sought his clarification of whether this would violate his injunction. They didn’t, as in, “who gives a damn about what the judge thinks. We’re special and can do whatever we please.” Their attempt to move forward with a second hearing, despite being subject to the injunction, makes their contempt for the court’s order about as clear as possible.

H/T KC Johnson

14 thoughts on “Penn State’s Contemptible Do-Over

  1. Mike G.

    I wonder what the optics would look like if the Dean of the college was jailed for contempt plus a hefty fine. And put the Title XI administrator in the cell next to him.

        1. SHG Post author

          Being a convicted defendant doesn’t mean you’ve learned anything about the law. It just means you lost.

  2. RAFIV

    Vapid rhetorical question, but am I wrong in assuming Penn State has both General Counsel and trial counsel? Someone please tell me that this is an instance of Sandoe’s First Law (“If the client can fuck it up, the client will fuck it up”) rather than attorneys drinking the Social Justice Cool-Aid and supporting this plan.

    1. SHG Post author

      Your guess is as good as anyone else’s. But I would think some legal genius thought this gambit would work.

  3. MollyG

    As someone who recently graduate from Penn State and still lives in the town, I wish to give a bit of perspective.

    Penn State routinely disregards their own policies, local, state and federal law on issues big and frustratingly small. The fact that Penn State acknowledged the existence of the judicial order and that they have any obligation to follow it at all, is in fact a step in the right direction.

    Baby steps.

  4. DHMCarver

    “by engaging in nonconsensual sex with a coed” — didn’t we stop calling women college students co-eds some decades ago?

      1. B. McLeod

        I think even prosecutors have to be careful with the injunctivy ones (which they almost never see). The university doesn’t seem to get that “‘No’ means ‘no'” thing.

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