• Internal Investigations,  Parallel Proceedings,  Title IX

    Title IX: Fair Campus, Foul Weather

    With Education Secretary Betsey Devos much in the news  over possible changes to the Dear Colleague letter promulgated by the DOE’s Office of Civil Rights, this note by me and my Lightfoot colleagues  Brandon Essig and Clint Speegle in University Business is timely: High-profile lawsuits, OCR investigations and new congressional legislative interest have all conspired to mean that colleges and universities ignore the Dear Colleague situation to their peril. Unlike the disciplinary process for a cheating scandal, the resolution of a sexual assault case is a classic “parallel-proceedings” scenario. At any moment there may be an administrative proceeding (by the university), as well as a criminal investigation (by external law enforcement)…

  • Internal Investigations,  Parallel Proceedings,  Universities

    Title IX, University Discipline, Sexual Assault and Parallel Proceedings

    A short — 140 seconds — note on the thickets of Title IX, sexual assault, university discipline and parallel procedures: University Discipline, Sexual Assault and Parallel Proceedings from LFW on Vimeo. Here’s a longer written piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education And, should anyone doubt the human costs involved in the mishandling of such investigations, one only need to recall disgraced prosecutor Mike Nifong and the Duke lacrosse case, as highlighted by Ed Bradley and 60 Minutes:

  • Agencies,  Trials, Judges and Jurors

    Brand’s Memo and Dan’s Desk

    Last month, then-Associate Attorney General Rachel Brand issued a memorandum to Department of Justice civil lawyers concerning the circumstances under which they may and may not use federal agencies’ “guidance documents” in civil lawsuits brought by the government.  Ms. Brand has since left the department to take a position in the private sector, but her memorandum lives on and may have significant effect for American regulated businesses not only for civil litigation – its stated goal – but also for corporate criminal indictments and trials. What Does The Memo Say? The Brand Memo, which is brief, follows up on a November 16, 2017 policy memo issued by Attorney General Jeff…

  • Presumption of Innocence,  Social Media,  Trials, Judges and Jurors

    “Fantastic Lies” and Corporate Criminal Prosecution

    When the past is dug up in documentaries (or docudramas), events are often sensationalized.  This practice is of long pedigree: Shakespeare was not above amping up an old story when it suited his needs.  Unfortunately, few filmmakers are at Shakespeare’s level, and the sensationalism ends up being no more than that.  The viewer has no better sense of the past than he did when he began.  The only sense the viewer has is the sense that she has been had. On the other hand, from time to time a documentary digs up the past but cools down the facts, making them approachable in a way that would have been impossible…

  • Due Process,  Parallel Proceedings

    The Old College Try, and The New College Tribunal

    In disciplinary proceedings involving claims of sexual assault, universities continue to find themselves in an intolerable situation, caught in a lawyer-triangle of the Department of Education’s Office of Civil Rights, student-complainants and the student-defendants. In part, at least, as a result of OCR’s “Dear Colleague” letter to colleges and universities about Title IX and disciplinary proceedings, there has been an upsurge in reported instances of sexual assault on campus. At the same time, there has been a sharp increase in lawsuits brought by student-respondents (that is, the male students who are accused), as this Wall Street Journal article details:  In Campus Rape Tribunals, Some Men See Injustice. The scenario set…

  • Parallel Proceedings,  Universities

    Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education

    Title IX. Crime. Sexual assault. University disciplinary procedures. Civil litigation. Enormous amounts of money. The Fifth Amendment. And that’s all before you hire a lawyer. This is a perilous time for university disciplinary systems and those who administer them, especially with regard to claims of sexual assault.  A college or university can find itself in the midst of – indeed, at the helm of – a set of quasi-criminal parallel proceedings that can make the school liable to student complainants, student respondents and federal enforcement authorities. How does this happen, and what are the factors to keep in mind to minimize that exposure? Disciplinary systems and educational missions have been…

  • Fifth Amendment,  Grand Jury

    Dante’s Guide: Preparing the Grand Jury Witness

    In the year 1300, at age 35, the narrator of Dante’s Inferno famously finds himself in trouble: Midway in our life’s journey, I went astray             from the straight road and woke to find myself                         alone in a dark wood.  How shall I say   what wood that was!  I never saw so drear,             so rank, so arduous a wilderness!             Its very memory gives a shape to fear.   The grand jury witness finds himself or herself in a position not unlike that of the Italian poet at the beginning of his trek through the Divine Comedy.  The federal grand jury is one of the most…

  • Leadership

    A Meditation On Father’s Day

                            At age 57, I am now five years older than my father was when he died.              For many years, I rarely thought of Daddy.  Primarily, I thought about him every January 6, the anniversary of the day he died. Annually, this was a day upon which my mother and I have the same conversation, rehearsed and hushed.  I loved him, and one might expect me to have thought of him more often, to have honored him, but I did not, at least not until recently.  Before you draw too many conclusions, though, bear in mind that I could not see him clearly.             Have you ever looked…

  • Cocktails,  Crime Fiction,  Music

    New Year’s Day: Reflection, Not Resolution

    Reflection without discipline can be self-indulgent, especially as the year draws to a close and a new one opens before us. So, let us impose discipline; avoid white-collar crime (there will be plenty in 2018); and focus on music, booze and books. First, music is especially appropriate at this season, whether for reflection or not.  Here is the Miles Black Quintet, Jazz For The New Year: As jazz critic for the Wall Street Journal (and JazzWax blogger) Marc Myers notes: Sixty-three years ago, on New Year’s Day in 1955, pianist Teddy Wilson, bassist Milt Hinton and drummer Jo Jones went into a studio for Norgran Records and recorded The Creative…

  • Grand Jury

    Dante’s Guide: Preparing the Grand Jury Witness

    Finally, one gets to quote Dante while talking about grand jury witnesses: In the year 1300, at age 35, the narrator of Dante’s Inferno famously finds himself in trouble: Midway in our life’s journey, I went astray from the straight road and woke to find myself alone in a dark wood.  How shall I say what wood that was!  I never saw so drear, so rank, so arduous a wilderness! Its very memory gives a shape to fear. The grand jury witness finds himself or herself in a position not unlike that of the Italian poet at the beginning of his trek through the Divine Comedy.  The federal grand jury…