Bettina Arndt: Justice warriors in the dock – Kangaroo court committees face legal action over unfair treatment of accused male students.

What a nasty shock. Campus administrators running America’s kangaroo courts thought they could get away with running roughshod over the legal rights of young men accused of sexual assault. For years they’ve been doing just that. But now they’ve been put on notice that they might be in the firing line when it comes to legal action against the universities.  

A series of judicial decisions has issued a warning to justice warriors who use their positions as campus officials to throw young men under the bus. One example involved officials from Lincoln-Sudbury high school, in Massachusetts, who weren’t happy when an investigation into sexual assault allegations reached inconclusive results and rather than put this on the record, they revised the report and inserted a guilty finding.

Campus administrators can no longer assume they can’t be sued for such biased behaviour. Courts are now saying that officials who undermine due process place themselves at risk of the loss of qualified immunity.

The recent legal judgements are part of a welcome trend for judges to disallow immunity defenses in these Title IX lawsuits, leaving campus officials thoroughly exposed.

Could this happen here?

Australia’s kangaroo courts are run by Sexual Assault and Sexual Harassment (SASH) committees who have license to derail the education of accused young men. But some of these officials are now wondering if they too might face legal risks from playing God in these quasi-judicial decision-making bodies.

There’s an interesting little publication called Campus Review – circulating to over 200,000 people in higher education. Earlier this year, an article appeared entitled  Lessons from the sexual assault and harassment committee: what could go wrong?

It was written by Alan Manly, who is CEO of Group Colleges Australia, representing the private higher education colleges, and Emeritus professor Greg Whateley, Deputy Vice Chancellor of the group. They wrote of a case involving a doctor from overseas who was helped by my Campus Justice lawyers, where we achieved a settlement from a major university.

The authors point out that in that case the student moved on – the doctor is now studying for graduate medical entry to work in Australia. But Manly and Whateley ask what if that student had been well-funded and bent on revenge, suggesting then he might have chosen to target the SASH committee for the appalling way he had been treated. They have great fun spelling out what that might mean for individual committee members:

“Good practice would suggest that all committee members should seek their own legal advice… Committee members would have to pay for this legal advice. The affidavits would be done and then they would come back for more details, more evidence to support your assertion.

“More time, more worry, more personal legal expense and you haven’t got to court yet.

“A few sleepless nights will be had by committee members.”

Imagine the worry of knowing such affidavits could expose your unfair treatment of the accused student. No wonder campus officials have been caught out shredding relevant documents, as was revealed in a recent scathing US court decision against Dordt University in Iowa which talked about officials violating “community standards of decently, fairness or reasonableness.”

Many sleepless nights for committee members.

Manly and Whateley first plant the seed of doubt, and then in June follow up with another article clearly aimed once again at the SASH committees: “Quasi-judicial committees vs state courts: opinion”

This time they focused on the most famous case in this territory, involving a medical student at the University of Queensland who went to the Supreme Court and successfully argued that universities had no jurisdiction to determine sexual assault cases. Judge Ann Lyons said that the university could not adjudicate criminal matters and was very critical of SASH procedures: “It would indeed be a startling result if a committee comprised of academics and students who are not required to have any legal training could decide allegations of a most serious kind without any of the protections of the criminal law.”

Manly and Whateley point out that the SASH committee was named as second respondent in this case, so when the university lost and had to pay the accused’s costs as well as their own, they were also potentially liable. “Members of the Quasi-Judicial Committee may be well advised to review the meaning of the word ‘quasi’ – ‘having some, but not all of the features of,’” suggest the authors.  

They add: “The feature that may be keeping some members of the Quasi-Judiciary Committee awake at night could well be the costs for a hearing in a Supreme Court with lawyers and barristers on full fee.”

On the hook?

The Campus Review authors are clearly stirring the possum, particularly given that such committees are likely to have “vicarious liability,” which means the university carries the legal can. But senior lawyers advise me that failure to provide natural justice for the accused person could create a personal liability which won’t always be indemnified by the university. And it is hardly good for career advancement to be the cause of an expensive lawsuit attracting adverse media attention for your employer.  

The University of Queensland appealed the Supreme Court decision and won with the judgement stating universities are allowed to deal with sexual misconduct after an offence is proven in criminal court. But it came with a warning for the universities, that they can expect to have their disciplinary decisions subject to judicial scrutiny if they fail to ensure their internal processes are suitable – meaning they must ensure procedural fairness. Here the university’s lawyers, Minter Ellison, outline the implications for the sector.  

Critically, the medical student escaped their clutches because he had graduated in the preceding year. The appeal judgement determined students who were no longer enrolled could not be subject to kangaroo courts.

Costs to University of Queensland

The university was clearly not happy, despite this apparent win. The whole saga probably set them back 2-300k in legal costs (Minter Ellison doesn’t come cheap), plus they’d attracted considerable negative publicity over the case in the same year as UQ was receiving negative media coverage over legal battles with student activist Drew Pavlou, who had been suspended for calling out the university’s strong ties to Beijing.  

Big wigs at UQ sprang into action and conducted a review of management of sexual misconduct cases, which decided to rein in the SASH committee, which was now relegated to the role of an advisory committee reporting to the Vice Chancellor. University regulations were reviewed to ensure “principles of procedural fairness” were applied – and many other universities followed suit.   

State of play

Apparently now there’s a more cautious mood in the higher education sector, with only one remaining member of the original 7-person SASH group at TEQSA, the higher education regulator which pushed universities into setting up kangaroo courts.

The speculation in Campus Review about legal liability for SASH members certainly doesn’t hurt and following a number of recent expensive legal cases and significant compensation payouts, the fervor for witch-hunts against accused male students may be starting to wane.

But there are still universities which feel entitled to flagrantly violate basic principles of fair treatment, like the case involving Andrew, the pharmacy student, which I wrote about in June. According to the Minter Ellison advice, universities are allowed to conduct disciplinary proceedings provided the case has been proved in criminal court. Andrew was found not guilty so how come the university proceeded with their inquiry? And where’s the procedural fairness in withholding his degree to ensure he remained in their clutches rather than allow him to graduate and leave the university – as happened at UQ?

Andrew’s case is a sitting duck for a major lawsuit against the university and against the members of the committee who acted so maliciously against this student, even after he’d been found not guilty in criminal court.

We are considering our options but would love to find serious legal firepower to take this one on. Our concern is less about compensation than about exposing the blatant disregard of fair treatment for accused students and the inherent inconsistences in the way the kangaroo courts are operating. But there may be money to be made from the universities’ deep pockets.    

More importantly, there are critical legal issues which deserve a public airing. Like:

·      In law sanctions for sexual assault have never included the disqualification of students from academic success they have achieved.

·       A criminal conviction is not a bar to studying at university or being granted a degree. How then can universities lawfully withhold degrees from students accused or even convicted of sexual assault?

·       If an applicant for a job in the public service is found to have a criminal record, this has to be relevant to the actual job before denying the job offer. Similarly, the only misconduct that should disbar a person from their degree is plagiarism or other misbehaviour impinging on their studies.  

·       The entire regulatory apparatus is justified by creating a safe environment of students – but by providing ‘safety’ for one group of students, universities have jeopardized the safety of accused students by using blatantly unfair procedures which deny their legal rights.  

·       Our universities’ SASH regulations usually deny accused students access to lawyers, let alone the right to cross examination of witnesses and other basic legal protections which Trump imposed on campus tribunals and Biden now seeks to remove. None of our universities come close to offering the required procedural fairness demanded by the Queensland appeal judgement.

Please spread the word amongst your legal contacts and other heavy hitters who might help us tackle this ongoing injustice. The tide is turning and sooner or later, Australia is going to see a university being held accountable for these witch-hunts. When that time comes – and it’s a question of when, not if – universities will pay a heavy price.

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