Members of this small but fast-growing legal specialty say the problem dates to 2011, when the Education Department advised colleges to take sexual assault more seriously and to lower the burden of proof for people bringing complaints. Since then, a White House task force has issued new guidelines and the Office of Civil Rights has released the names of more than 85 colleges that are under campus disciplinary hearing investigation for not doing enough. Faced with all that political pressure, said JoshuaAdam Engel, a lawyer in Mason, Ohio, colleges are panicking.
Despite assurances that the bill would be fair to everyone involved, some advocates on both sides found fault with it. “There’s nothing here that protects the fundamental due-process rights of the accused,” said Joshua A. Engel, a lawyer who represents students who feel they have been unjustly accused of assault. That includes the right to effectively cross-examine an accuser and limits on the use of hearsay, he said. In addition, “You can have all the training you want, but if the people you’re training have insufficient experience in handling these cases, that’s not enough.”
The problem is that universities are ill-equipped to handle sexual assault accusations, said Josh Engel, a defense attorney who represents accused students suing UC, Miami and other universities. He’s also a former prosecutor who has handled dozens of Title IX cases and put sex offenders in jail.
“Schools are being asked to act as police and prosecutors and judges and juries in what are the most complicated cases for the legal system to deal with,” Engel said. “You’re inevitably going to get mistakes.”
“More students are starting to recognize they aren’t being treated fairly by the system,” said Josh Engel, the attorney representing John Doe. “It’s a system that is too ready, whether by training or inclination, to believe the accuser.”
“There is nothing the federal government says that states a school can’t include additional due process protections for the students,” Engel said….
Engel advises students and unions … to remember that administrators will take advantage of someone who doesn’t have full protections…. “The process always works best when everyone knows all of their rights,” he said.
Historically lax punishment for rapists at some colleges has spurred new rules from the federal government in recent years. Now, schools are required to investigate and resolve any allegation of sexual assault quickly and decisively. Failure by colleges to do that can lead to fines, federal investigations that can last years and a black eye to their public reputations.
“They wanna say, ‘We’re tough; we dealt with this,’” said Joshua Engel, a Cincinnati lawyer who represents students in lawsuits they file against colleges over judicial decisions. “Essentially, they want to put heads out on pikes in front of the school to show that they’re tough.”
Josh Engel, an Ohio-based attorney who represents students being denied due process in sexual assault hearings, told theWashington Examiner that schools won’t get credit for a fair process if it doesn’t lead to a punishment.
“All the incentives for the school are lined up at the moment to encourage them to throw kids out. Schools do not get any credit from the Department of Education because they provide adequate or more-than-adequate due process,” Engel said. “All the Department seems to be concerned about these days is results, which is, ‘how many kids have you disciplined?’ ”
Engel, who has represented other students or former students suing universities, said schools have acted too swiftly in fear of federal investigations being launched on their campuses.
“We’ve seen schools really rush to judgment on these cases in order to make themselves look better for the Department of Education all around the country,” he said.
Engel said his client’s case “is part of a nationwide trend of judges overturning unfair and arbitrary decisions by schools in cases involving allegations of sexual assault. These are difficult cases and the issue of sexual assault on campuses is important. For those reasons, schools should be working to provide more, not less, due process to student in order to assure the most reliable outcomes.”
In another case, a Hamilton County Common Pleas judge could order UC to stop disciplinary proceedings against a student after a disciplinary hearing found he violated the Code of Conduct with two female students.
The student, . . . had sued UC.
“They gave the impression that they were looking to make an example out of somebody,” said Josh Engel, one of [the student’s] lawyers. “It sure looked like they were making an example of my client so they could demonstrate they were taking sexual assault on campus seriously.”
AACRAO (American Association of Collegiate Registrars and Admissions Officers):
Joshua A. Engel, a lawyer who also represents [students] who feel they’ve been unjustly accused of rape, said many colleges “provide significant resources for students who make allegations, but no support for students who are accused; many cannot afford legal help and must act alone.”
Noting that “Dear Colleague” letter says that colleges must provide due process to accused students, the duo’s attorney, Joshua Adam Engel, aggressively defines the concept, arguing that “students facing discipline must be afforded the opportunity to defend, enforce or protect their rights through presentation of their own evidence, confrontation of adverse witnesses, and oral argument.”
The attorneys who filed the suit, Josh Engel . . . , also poke holes in the UC Code of Conduct concerning the Administration Review Committee Hearing that accused students are entitled to before being disciplined. They claim that some provisions in the code of conduct “raise significant due process and self-incrimination concerns.”
“UC does not undertake a full, complete and impartial investigation prior to the institution of disciplinary proceeding for allegations of sexual assault or harassment,” according to the suit.
But the student, identified only as “John Doe” in the lawsuit, says the sexual encounter was consensual. He and his lawyer, Joshua Engel, argue the university’s reputation for inadequately providing justice for victims of sexual assault has, in John Doe’s case, caused injustice for the accused. The lawsuit claims the university “presumed that John Doe was responsible in order to look good for the Department of Education and advocates.”
Joshua Engel is a civil attorney who represents students that have been accused of sexual assault and is a former prosecutor. Engel works to ensure students are given their due process rights in sexual misconduct cases at universities.
“If you have the mindset that the person who is accused of misconduct is not innocent until proven guilty, you’re much more likely to find them responsible or find them guilty,” civil rights attorney Joshua Engel said.