As reported in the Hartford Courant on Saturday, Attorney Michael Thad Allen of Allen Law LLC successfully argued in the District Court for the United States District of Connecticut that the University of Connecticut denied his client, identified only as John Doe, his constitutional rights to due process.
The decision, issued Thursday, January 23, 2020, required the university to permit John Doe to return to classes for Spring Semester 2020 after UConn suspended him for two years without any guarantee of return.
The court order is temporary, pending a hearing on John Doe’s motion for preliminary injunction, which is scheduled for early February.
John Doe was accused of campus sexual misconduct under UConn’s Student Code in September of last year. In the course of UConn’s investigation of the incident, school administrators denied John Doe the right to present witnesses, submit statements from his witnesses, refused to interview other witnesses, and refused to consider other evidence in John Doe’s defense.
For example, at an eventual hearing held in December, John Doe brought witnesses who were prepared to testify that the Complainant, whose identity has also been kept anonymous as Jane Roe, initiated sexual activity and invited him into her dorm room. Because Jane Roe denied doing so, this evidence directly implicated her credibility. But UConn excluded this evidence and found John Doe guilty.
His accuser, Jane Roe, brought no witnesses to the hearing, and John Doe had no opportunity to question them.
Judge Michael Shea’s opinion ruled that this was unfair. UConn denied John Doe the right to question witnesses against him or present evidence undermining the credibility of his accuser.
Attorney Michael Thad Allen has been quoted in the Hartford Courant and other outlets, speaking about UConn’s unfair policies and procedures:
“UConn has systemic problems with their assessment of credibility and lack of due process, which have to be corrected. A lack of due process harms complainants and accused students alike. Complainants don’t want a world in which administrators can arbitrarily exclude their witnesses, and they don’t benefit from the arbitrary exclusion of accused students’ witnesses, either. Everyone benefits from a process aimed at finding the truth and believing the evidence.”
This is the second Temporary Restraining Order issued to prevent UConn’s so-called “community standards” officialdom from violating students’ constitutional rights within a week. Each was issued by Judge Michael Shea.
In another case, the court ordered UConn to allow students back into student housing. UConn threw them off-campus following allegations that they had violated school rules against “ridicule” after they were overheard uttering racial slurs amongst themselves.
The students, represented by Brignole, Bush & Lewis LLC, claimed to have been playing a game in which they shouted escalating, offensive profanities. The “game” was not directing at any individual in particular, and they did not believe anyone else was even listening. Unbeknownst to them, a stranger recorded them in the act on his cell phone, but he had to increase the volume on the playback just to recognize what they had said in the first place. He then posted the video to social media. This triggered UConn’s code enforcement bureaucracy to swing into action.
UConn argued in court that it was not punishing the students for uttering offensive speech. Instead, Assistant Attorney General Ralph Urban argued that UConn had a right to discipline them for “simply creat[ing] loud noises.”
Judge Shea’s decision found UConn’s sanctions against the students to be an impermissible infringement of the exercise of free speech.
The first amendment protects students’ right to free speech at public universities like the University of Connecticut. There is no exception for unpalatable, sophomoric, or offensive speech. As the Supreme Court explained long ago, “the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” In this case, the admittedly offensive speech was not even directed at anyone in particular.
As Samantha Harris has written for the Foundation for Individual Rights in Education: “When a judge tells you twice in one week that you are violating students’ constitutional rights, it may be time to listen.”
It remains to be seen whether the University of Connecticut and its extensive “Community Standards” bureaucracy will do so.