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Was Gibbons Wrongfully Expelled by Michigan?

M Man's picture
April 28, 2014 at 4:58pm
144 Comments

James Taranto, the Wall Street Journal columnist and "Best of the Web" daily proprietor at WSJ.com, lays down an awesome marker in the fight over the spate of Title IX activity since the Obama Administration's "Dear Colleague" letter of April, 2012.

Get a load of this (the emphasis in the quote below is added):

Brett Sokolow, director of the Association of Title IX Administrators, has a warning for American college and university administrators: In their efforts to enforce Title IX, he argues, they are running afoul of Title IX.

Title IX is a provision of the Education Amendments of 1972 that stipulates: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." Under the Obama administration, the Education Department has interpreted this law as requiring colleges and universities to police sexual misconduct involving students, on or off campus, under the broad rubric of "sexual harassment . . . including sexual violence."

In a newsletter to members dated last Thursday, Sokolow reports that "in the last two weeks, I've worked on five cases all involving drunken hook-ups on college campuses. In each case, the male accused of sexual misconduct was found responsible. In each case, I thought the college got it completely wrong."

He does not reveal the names of the institutions involved or any other specific details of the cases, presumably because his consultative role entails a duty of confidentiality. But he sums up the problem as follows: "Some [disciplinary] boards and panels still can't tell the difference between drunken sex and a policy violation"--that is, a sexual assault.

Sometimes that is by design. "In a recent case," Sokolow recounts, "the campus policy stated that intoxication creates an inability to consent." That makes it easy to establish a violation--except that in many cases the accuser has violated the letter of the policy as much as the accused has. "If both are intoxicated, they both did the same thing to each other," Sokolow writes. "Why should only the male be charged if both students behave in ways defined as prohibited by the policy?"

That's a rhetorical question. "I'm not suggesting we charge both," Sokolow clarifies. "Surely, every drunken sexual hook-up is not a punishable offense. . . . There must be something that the respondent does, beyond having sex, that makes a lawful act into a policy violation."

In his view, a drunken sexual encounter should be considered an assault only if the facts show that the accuser was incapacitated by alcohol and that the accused had mens rea,or guilty intent: the "knowledge of that incapacitation, whether actual or constructive"--in other words, "that the respondent know or should have known" of the complainant's incapacitation.

...

"There is no need for an intent to rape, but there has to be something more than an intent to have sex to make this an offense," he writes. "Otherwise, men are simply being punished for having sex, which is sex discrimination under Title IX, because their partners are having sex too and are not being subjected to the code of conduct for doing so." Title IX, after all, protects students of both sexes from sex discrimination.

I will bet dollars to doughnuts, that one of the cases Sokolow reviewed, was the Gibbons case.  Michigan Daily, get on it.

This is exactly where I thought that the Gibbons case (and similar matters) was headed from the first time it was mentioned here at 11W.  And at MGoBlog for that matter.

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stevebelliseeya's picture

This whole thread hurt my dome.

I'm pretty certain I just don't give a shit, even in the offseason.

 

"We are eternal. All this pain is an illusion." - Tool

+3 HS
e135800's picture

Yawn.  Move along, nothing to see here.  He and his buddy Lewan are simple thugs, they got it right

 

 

+15 HS
Scarlet_Lutefisk's picture

Thank you for sharing your hasty generalization with us. Your never ending stream of logical fallacies never ceases to entertain. The continued links to political editorials is also a nice touch.

+13 HS
OSU_1992_UFM's picture

Scarlet is bringing the juice!

Spring football is like non-alcoholic beer.  It looks like what you want, but only intensifies your desire for the real thing--Earle

M Man's picture

Bumping this thread.  With this news.  Not Gibbons, but another Michigan undergrad.  Who (just as I suggested with Gibbons!) is now suing the University of Michigan in state and federal courts for having denied him his rights in a sexual assault administrative hearing.

I know Deborah Gordon, the plaintiff's attorney.  She is an extremely fine litigator, not usually associated with any purportedly "conservative" causes.  Her father was the now-deceased late night Detroit tv talk show host Lou Gordon.  She's a major league plaintiff's employment litigation lawyer.  Skilled, respected, and most often associated with left-leaning civil rights causes.  It is interesting that she has the plaintiff in this case.

A former University of Michigan student is suing the school, claiming an investigation into a sexual misconduct report that resulted in his suspension violated his constitutional rights.

Twenty-one-year-old Drew Sterrett, of New York, filed lawsuits in both federal and Washtenaw County courts in late April that say the university committed numerous violations while looking into a sexual encounter that occurred between Sterrett and an unnamed female student at Mosher-Jordan Hall in March 2012.

Sterrett was never criminally charged and the woman didn’t report any misconduct until August 2012. The lawsuit alleges the sex was consensual and the woman only reported it as misconduct after her mother found a diary chronicling the times she had sex.

...

The lawsuit gives the following account of what happened March 16, 2012:

There was a gathering at Sterrett’s dorm room. The woman didn’t want to go back to sleep at her own dorm room because her roommate had company. She decided to stay in Sterrett’s room. They had kissed prior to that night, the suit says.

Sterrett and his roommate, whose name does not appear in the suit, have bunk beds. His roommate climbed into the top bunk to go to sleep. Sterrett and the woman got into the bottom bunk.

Also uncontested by the woman is that they kissed and had sexual intercourse.

The woman did contest that the sexual encounter was “completely consensual at all times,” according to the suit.

Sterrett’s roommate was in the top bunk throughout the encounter. The woman is not contesting that she never attempted to ask him for help.

While the two were having sex, the roommate wrote Sterrett the following Facebook message at 3:19 a.m.”

“Dude, you and [the woman] are being abnoxtiously(sic) loud and inconsiderate, so expect to pay back in full tomorrow. I only don’t say anything now so I don’t embarrass you all ... Yours Truly”

The woman spent the rest of the night in Sterrett’s room, according to the suit.

“At no time did (the woman) ever tell (Sterrett) that the sexual encounter had been anything but consensual,” the suit states.

Sterrett and the woman agreed to keep the encounter to themselves the next morning.

Sexual misconduct

The woman went to the university’s Office of Institutional Equity five months later, on Aug. 2, 2012, to make a verbal, sexual misconduct complaint.

Sterrett was back home in New York when he got a call from Heather Cowan, program manager and investigator with the Office Student Conflict Resolution, a few days after that. He was told a student had filed a complaint against him, but Cowan didn’t specify what it was. He agreed to Skype with her about it later that day.

Gordon said Sterrett has still never met face-to-face with any of the university officials who were involved with his suspension.

Sterrett admitted to the sexual encounter and said it was consensual. What followed was an investigation into the matter that the suit says violated Sterrett's 14th Amendment right to due process.

Gordon said he was never given the names of the witnesses Cowan was interviewing and there was never a hearing.

Students have these for other offenses, Gordon said, but not for sexual misconduct. She called the investigation "a Kafkaesque nightmare."

When Sterrett came back to school in the fall, he couldn't return to his old dorm or associate with any of his old friend, the suit claims. Since he wasn't allowed to talk specifically with his roommate who was in the top bunk, the suit also claim's the university violated his constitutional right to free speech.

The report

Cowan's report was finished by November 2012 which "determined that (he) engaged in sexual intercourse with (her) without her consent and that that activity is so severe as to create a hostile environment," the suit states.

The suit alleges the decision was partially based on Sterrett telling Cowan that he regretted the encounter. It was only at this time that the university said alcohol may have been involved. The report stated the girl was too intoxicated to have been able to give consent, the lawsuit says.

At that time, Sterrett was suspended from U-M until May 1, 2016. The appeals board, members of which are named in the suit, denied him any further action.

-3 HS
d5k's picture

I definitely agree that there is a loose legal interpretation to go from sexual assault to institutional gender discrimination.  Basically the interpretation is that by not sufficiently deterring rape and other sexual misconduct, females are being discriminated against.  They are likely going too far the other direction in some cases but it is somewhat common knowledge that there is a "rape culture" around college campuses.

+2 HS
skid21's picture

You mean wrongly expelled 4 years later? Yep, the guy certainly got screwed by the system.

+19 HS
buckeyestu's picture

Maybe we should ask the alleged victim what she thinks.Tired of the meatchicken fans acting they are above others, like their shit does not stink. As for that basketball player, "I only smoked dope once"? Yeah right!! Screw meatchicken. Ya all suck.

+5 HS
M Man's picture

1.  It would be good to ask the alleged victim.  That is, if there had even been a prima facie criminal case.  Seemingly, there was none.  But yes indeed it would be good to ask her about all of it.  Under oath, in a court of law.  With absolutely all of the legal and traditional media protections for such a complainant.  And of course, all of the legal protections owed to a criminal defendant.  Again, that is, if there had been sufficient evidence to make someone a criminal defendant.

2.  Judging by the MGoBoard, most "Meatchicken fans" have turned on Gibbons.  For my part, I've never once claimed to have known what actually transpired on that November night in 2009.  What I have contended is that such matters -- casual, reckless talk about "rape" -- belong in a court of law and nowhere else.

3.  My further continuing contention is that the passage of time will surely see one of these matters arise on the campus of The Ohio State University, and at that time my position will be exactly the same as in the Gibbons case.  Show me the evidence, in a courtroom.  Let the police do their investigative work, without interference or influence.  Prosecute crimes.  Presume innocence.  I will look with total suspicion on any sub-legal proceeding, such as a student "conflict resolution" administrative hearing.  This is not a rivalry thing.  This is not even a football thing.  This is a major federal education/Title IX policy initiative.

4.  You clearly never saw what I wrote about McGary here at 11W.

-3 HS
bucndc's picture

M man

I have an 18 year old daughter on campus. If those assholes would have done that shit to my daughter, I guarantee they wouldn't be preparing for the NFL draft. I'm 5-9 and 165.

Think,

Your so called alleged victim, is someone's sister, daughter. She is a REAL human. I am sick of you defending these fucks. They put themselves in a bad situation. Didn't your parents teach you about consequences? You get excited about some messed up legal crap. You need to go down to the Franklin County Court House, sit in the back row and jerk yourself off.

 

+11 HS
TheTeam16's picture

So then what do you have to say about the carlos hyde incident? Same situation of alleged wrongdoing, although in the Hyde case there was actual solid evidence that he indeed committed the act. Not saying that assault=rape...

I am not saying Gibbons is innocent by a long shot, but UM fans aren't the only ones who will defend their players to the death. 

+2 HS
Scarlet_Lutefisk's picture

Except that the 'solid evidence' pretty clearly shows that Hyde did not commit assault. Please feel free to keep torturing logic within an inch of it's life.

+4 HS
TheTeam16's picture

Yet there is more proof Hyde did something wrong than there is proof that gibbons did something wrong. Again, I am not saying he is innocent, but you cannot act like Michigan fans are any worse than OSU fans are when it comes to sticking up for their athletes.

+1 HS
M Man's picture

BucnDC:

Tell us all the worst thing that I have written about the alleged victim.

Search the Forum(s).  Quote me.

+1 HS
jedkat's picture

me.

 

too literal?

"Can we please stop the message board fighting? I really can't stand the message board fighting..."

"No. You're an idiot, and your posts are terrible."

+1 HS
ghalephoto's picture

u man-Why are you writing anything on here...this story wasn't important to us the day after it came out.  Anything written about Mitch McGary is certainly old news.  We simply don't care as much as you want us to, and um, probably never will.  We will let ya know, thanks for writing.

+6 HS
Mercurius's picture

Yes; he was expelled four years too late.

+10 HS
The Urban Legend's picture

So what you're saying is the university sucks at everything and not just football?

The Legend continues

+14 HS
phxbuck's picture

Awesome forum post Farva.

phxbuck's picture

Awesome forum post Farva.

bucndc's picture

I have to question the integrity of a man that would make these statements. He was supposed to be investigating the University's handling of an alleged rape, that he refers to as "a drunken hook-up". I quit reading. This man should be fired. M Man, I respect your posts, but your butthurt over Lewan and Gibbons isn't going to get any sympathy here.

 

+6 HS
M Man's picture

What on earth were you reading?

Brett Sokolow is not a University of Michigan investigator.  He doesn't work for Michigan at all.  If, as I think he did, Sokolow reviewed the Gibbons case it might well have been at the request of counsel representing the accused.  Few others would have any authorized access to the records.  At the same time, his stock in trade is consulting for universities.  He might have been asked for an institutional review, but it seems unlikely that he'd comment publicly, especially working for separate institutions.  And there are other possibilities.

Sokolow is the Executive Director of the Association of Title IX Administrators and the CEO of the National Center for Higher Education Risk Management providing legal counsel and expert consulting to universities.  Here's his CV. 

As for me; I know full well that everybody here will read what I write with the maximum level of suspicion and criticism.  That's okay.  I can take it.  Just tell me what I've gotten wrong.

-4 HS
bucndc's picture

Where did I call him a University of Michigan Investigator? It clearly states he works for the government, Director of Title IX.

Our difference was, I said investigate, you said review. He's still an asshole. How could you as a professional call an alleged rape, drunken hook-up? It's totally irresponsible. If he were my counsel, I would seek to have him sanctioned. But yet, you choose to use this idiot as some kind of proof of innocence.

 

+3 HS
M Man's picture

No.  Wrong.  He does not "work for the government."

The Association of Title IX Administrators is a private organization.

If an alleged rape is in fact not a rape and, after reviewing something like, say, the entire transcript from an administrative hearing... Then, yeah, one could reasonably determine that what had at one time been alleged as a rape was in fact a drunken hook-up.

bucndc's picture

If an alleged rape is in fact not a rape

 

Where is that a proven fact? His statements do not conclude that is a fact. Where do you see that? I will not argue this any further. You are defending scumbags. That is a fact. I don't care if they are from Michigan, OSU or anywhere else. Lewan and Gibbons' actions have shown they are less than desirable human beings.

The last time I went to court (ex-wife) my attorney summed up my ex's attorney by stating, " He's not a total scumbag".

 

 

+4 HS
Johnny-Shane_Utah-Falco's picture

M Man, 

I'm with you on this. You bring up very interesting points.

Also, there are some extreme radicals in that administration who are trying to police everything, even free speech. Don't even get me started on Eric Holder.

If we could still upvote thread topics...you'd get an upvote from me.

-10 HS
skid21's picture

M Man, 

I'm with you on this. You bring up very interesting points.

And what would those be?

+2 HS
skid21's picture

Judging by the MGoBoard, most "Meatchicken fans" have turned on Gibbons.  For my part, I've never once claimed to have known what actually transpired on that November night in 2009.  What I have contended is that such matters -- casual, reckless talk about "rape" -- belong in a court of law and nowhere else.

OK. So why wasn't it ever brought before the court of law?

-5 HS
hodge's picture

If I recall, it's because the Ann Arbor PD (who's been pretty harsh with athletes in the past) investigated the matter and determined that it wasn't worth pressing charges.

+1 HS
skid21's picture

Yet the university, 4 years later, decided it was worthy of him being booted. Then the head coach lied about why he wasn't playing. But you say the Ann Arbor police are the ones we should trust because they are so harsh with athletes? Sorry but that is hilarious.

+4 HS
hodge's picture

I'm not saying we should or shouldn't.  I'm merely stating fact.  

If Gibbons committed rape, then by all means he should be punished to the fullest extent of the law.  The issue here is when the university comes to a different conclusion than the law, then either one of two outcomes are occurring: (1) the law is failing to do their due diligence and letting a guilty man skirt, or (2) the university is acting unilaterally and condemning someone innocent (in the eyes of the law, at least) with suspect evidence.  I don't know which outcome is correct, but I do think it's just as easy to conclude that UM is being overzealous without the burden of proof as it is to say that the police precipitated a cover up.

I'm not trying to defend Hoke here, but Urban did consciously avoid Spence's situation too.

+5 HS
M Man's picture

Oh lord, Skid21.  You've missed a lot of this class, haven't you?

The Ann Arbor Police Department investigated, in 2009.  Everybody in town knew what had transpired.  That the girl had made a report, Gibbons had been brought in for questioning and he answered all questions without asking for a lawyer.  The local newspapers, and the Michigan Daily all knew about it.  MGoBlog knew about it.  I knew about it, within hours of Gibbons' leaving the department offices.  AAPD investigated.  They investigated for several weeks.  In the end, they did not submit a case to the Washtenaw County Prosecutors office.  This is the same Prosecutors office that laid a felony charge (since dismissed per the Holmes Act) on Frank Clark, prosecuted numerous OUI cases against Michigan athletes and even tried to make a case under ridiculous circumstances against former d-back Josh Furman who took it to a bench trial and won a not guilty verdict.  Listen to your friend Hodge, who is always paying attention in this class.

Gibbons will assuredly never be prosecuted for criminal sexual assault; that case has so completely collapsed now it is no longer funny.  Gibbons would never have been brought up on student conduct charges but for two things.  One was a relentless local gadlfly who had his own checkered history as an employee of the U-M Medical Center; the guy (an early retiree now) has been bashing his own pet causes with the university regents for years.  He was apparently the guy who made a belated Department of Education Office of Civil Rights complaint.  And even that would have gone nowhere, but for the Obama Administration's 2012 policy change on pressing Title IX investigations in connection with supposed sexual assaults on campus.

Brady Hoke's dissembling about Gibbons' missing the Michigan bowl game due to a "family matter" had nothing to do with the imposition of Gibbons' expulsion; the expulsion was a fait accompli at that point.  I have publicly criticized Hoke for that characterization here at this blog.  It was a bit of dumb and pointless hyper-defensiveness on the part of Hoke.  But of course, Gibbons was owed his privacy in the administrative proceeding as well, and that privacy was illegally trashed by someone.

-1 HS
TheTeam16's picture

Thank you Hodge. Everyone and their mother is trying to pin this lack of an investigation on Brady Hoke, or MSC, or the University of Michigan. 

THE POLICE DEPARTMENT DECIDED TO NOT INVESTIGATE! I am pretty sure if a trained senior officer of the law said there was no need to investigate a suspicion at ohio state or any other university for that matter in regards to an athlete, it would be case closed by the university as well. If you think otherwise you are being ignorant. 

If anyone should be receiving punishment from this it is the police chief in AA (who has a extensive history of being as hard on UM athletes as he can be) who decided to no longer pursue looking into a rape case with plenty of supporting evidence. 

-3 HS
M Man's picture

Well this is wrong.

The police absolutely and positively DID investigate.  They investigated the case for weeks.  There were at least two detectives on the case.  Ann Arbor's Chief of Police had no personal role in the case as far as I know.

So it is NOT true to suggest that AAPD "decided not to investigate."  There are pages of investigative reports.

NO -- what the AAPD decided was to not refer the case to the Washtenaw County Prosecutor for prosecution.  It is a pure falsehood on your part to suggest that Ann Arbor's Chief of Police had anything to do with any decision "to no longer pursue looking into a rape case with plenty of supporting evidence."  We've had two chiefs in Ann Arbor during the relevant period of time by the way.

+2 HS
TheTeam16's picture

I should not have said "did not investigate," poor choice of words on my part. Meant to convey did not pursue further action...

+1 HS
Poison nuts's picture

Sun on sun violence :)

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

+4 HS
buckskin's picture

TTUN fans having a verbal spat on a Buckeye website.  WTF?  Go home losers.

+1 HS
Colerain 2004 G.O.A.T.'s picture

M man...Didn't the victim in this case go on to found some kind of Anti-rape group ? I thought I had seen something a long those lines a while back but I cant seem to find it now. Figured with as much interest you have in this case your memory might be a little fresher on the subject.

I speak the truth but I guess that's a foreign language to yall.~~Lil Wayne

-2 HS
M Man's picture

No, to the best of my knowledge that is untrue.  The complainant has not become an activist.  And the local blogger who has made a living out of the case is no activist for feminist causes.  He was at one time an Ypsilanti-area Tea Party activist.

The complainant woman was, like Gibbons, a scholarship athlete at Michigan.  She took at least one term off (more, I am not sure about) but it is my understanding that she kept her athletic grant-in-aid.

 

***Edit/Update*** - This was such a provocative question that I checked into it further.  I have paid little or no attention to the accuser in this case.  Her name ought not be published, under routine journalistic standards pertaining to sexual assault victims, alleged or proven or anything else.  I will not publish her name.  While it does not change a single word that I have posted anywhere else in this thread, I must now say that yes, Gibbons' accuser has now become very actively involved in sexual assault prevention/activism.  I don't wish to say any more, and I don't think it has any bearing on the substance of what I have been writing.  I left intact my original response just above, where I said I was unaware of her becoming an activist.

-1 HS
Colerain 2004 G.O.A.T.'s picture

Thanks for coming clean on that one, I had pretty much discredited everything else you had written when I seen your answer to my original question. Bravo

I speak the truth but I guess that's a foreign language to yall.~~Lil Wayne

+1 HS
M Man's picture

How did you know?  I wouldn't mind telling you how I figured it out, but I am highly sensitive to the moral rule against publishing the identity of a sexual assault victim.  I will say that the alleged victim doesn't seem to be doing much to lead a strictly private life.

-2 HS
Colerain 2004 G.O.A.T.'s picture

Honestly it all started in a thread similar to this one that took place months ago on another site. A *ichigan fan was empathetically telling chatters how Gibbons was being set up and how he and Lewan were choir boys who were being taken advantage of. Another poster had responded to him that would he believe it if the victim had  since the incident dedicated herself to some advocacy group to help prevent rape if indeed she was making it all up. Enough information was given at that time to really interest me so I did  some googling and fact checking and seen it was indeed the truth. I couldn't remember her name and I wouldn't post it if I did know it but I figured a guy like yourself that has done some obvious research and has maybe a small vested interest would know about that because I myself found it to be a pretty telling fact. Ive seen a lot of sexual assault cases from multiple angles but have never seen a woman subject herself not only to a rape kit(aka the 2nd rape) but also  to dedicate and volunteer herself to help future victims in that form if she was indeed "Just making it up".

I speak the truth but I guess that's a foreign language to yall.~~Lil Wayne

+1 HS
rosycheeks's picture

Yes, he was wrongfully expelled. Michigan is where a bum like him belongs.

+4 HS
TheTeam16's picture

Lots of bums attend the 28th ranked university in the country... #Logic

-8 HS
rosycheeks's picture

I didn't say that every attendee is a bum. #morelogicalthanyou #boomgoesthedynamite

-4 HS
OSU_1992_UFM's picture

Well, that was a good thread fight.....

Spring football is like non-alcoholic beer.  It looks like what you want, but only intensifies your desire for the real thing--Earle

Colerain 2004 G.O.A.T.'s picture

I speak the truth but I guess that's a foreign language to yall.~~Lil Wayne

+3 HS
bucndc's picture

Bottom Line M Man,

You have posted this topic numerous times. Once is a discussion, twice is follow-up. Now you are just trolling. You even state in your comments you are going to get negged. That is trolling by its very definition. Can we please put an end to this at eleven warriors? FUCK Gibbons, FUCK Lewan. If you feel the need to discuss their horseshit, go back to mgoblog. I have a feeling they would treat you almost as bad as me.

+2 HS

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