consultants are sandburs

Tuesday, January 03, 2017

OFF CAMPUS JURISDICTION? Dear Mr. Kaler, Ms. Hewitt, Esq.: If you want to run the Radius, then you buy the Radius. If you do, and make it part of UMn campus housing, then you clearly would have jurisdiction there. [UPDATED]

The argument is simple. Rules of the campus govern the campus.

Rules of the county and surrounding towns govern appropriately, off campus.

Press reporting indicates that neither The University of Minnestoa, nor the State of Minnesota own the Dinkeytown residence known as "The Radius;" that instead it is privately owned and run. And all the one woman, ten footballers mischief was confined to a single private bedroom and bedroom suite of that (apparently) privately owned and managed off-campus building.

Freeman is County Attorney having jurisdiction over the Radius and happenings within it, and he has looked at U students' conduct there twice without prosecuting - that clearly being a proper exercise of his jurisdiction.

Again, Freeman with jurisdiction declined to prosecute. That presumably would include finding no ordinance infraction by Radius ownership with regard to any duty it might owe for supervision of tenant-guest conduct.

University of Minnesota Regents' Policy re Student Conduct Subject to Punishment: Bottom line, does Title IX or other actual law expressly entitle a university to assert a jurisdiction to punish conduct off-campus? Absent having such jurisdiction, overreach seems implicit.

Our University Regents in their unyielding wisdom have set their most current revised and updated version of a student conduct code online. Regents policy in relevant part being conveyed by two clickable thumbnail images [red highlighting added] and an examination of its Section IV language, beginning at p.3 of 8 pages:

first page
final page
A key thing to note, without its date of inclusion into the repeatedly revised code text, is the Subd 3 language of the final page baldly asserting an off campus reach under the incredibly and offensively vague language, "[...] when the conduct, as alleged, adversely affects a substantial University interest and [a] constitutes a criminal offense [...] regardless of the [...] outcome of any criminal proceeding; or [b] indicates that the student or student group may present a danger or threat to the health or safety of the student or others."

Hell, they play football! Regarding the quoted subpart [b] language, the University makes mega-money from their enduring "danger or threat to the health or safety of" every frigging one on the football squad playing in games or participating in practice or in the weight room. It's their job. They are paid a scholarship for it. Players on other teams get hurt generating income for the two involved institutions of higher learning. And footballers presumably exercise off campus too, and they walk Dinkytown streets where students have been assulted by non-students.

Beyond subpart [b] vagueness, what's the subpart [a] language mean, beyond zippo, nothing, nada?

Freeman declined to prosecute; but "a criminal offense regardless of outcome" means one, in whose eyes? Ms. Hewitt, Esq.'s? In the view of her minions? In the view of the ten young men? They have been reported by investigating police as explicit and certain in their recollections; not having vague meandering recollections well after the fact and after four or more stiff drinks clouding memory.

Freeman, remember who he is in things, said there's insufficient evidence of any criminality to prosecute.

A bottom line: What in the world is that subpart [a] last-clause/phrase garbage language doing in a Regents policy document? Who put it there, and what thinking, if any, was entailed? It reflects badly upon the University as an intellectual endeavor. It is amateur.

Fulminations over abuse of English aside, the claim is one of EOAA punitive jurisdiction off campus; and that is key.


Sauce for the goose is sauce for the gander? In between first and last pages of the conduct code, a Section IV preamble onward imposes accessorial liability and names offenses [where in your reader's judgment of whether overbroad reach is included, do the simple mental exercise of using "administrator" as a word justly interchangeable with "student"]:

Any  student  or  student  group  found  to  have  committed,  attempted  to  commit,  or  assisted  or  abetted another  person  or  group  to  commit  the  following  misconduct  is  subject  to  appropriate  disciplinary action  under  this  policy:

Subd.  1.  Scholastic  Dishonesty.  Scholastic  dishonesty  means  [...] acting  alone  or  in  cooperation  with  another  to  falsify  records  [...]; or  fabricating  or  falsifying  data,  research  procedures,  or  data  analysis.

Subd.  5.  Attempt  to  Injure  or  Defraud.  Attempt  to  injure  or  defraud  means  making,  [...]  any  record,  document,  writing,  or  identification  used  or  maintained by  the  University  when  done  with  intent  to  injure,  defraud,  or  misinform.

Subd.  6.  Harm  to  Person.  Harm  to  person  means  engaging  in  conduct  that  endangers  or  threatens  to endanger  the  [...] mental  health,  safety,  or  welfare  of  another  person,  including,  but  not limited  to,  threatening,  [...]  harassing,  intimidating,  [...]  behavior.

Subd.  7.  Bullying.  Bullying  means  aggressive  behavior  directed  at  another  person  that  causes  stress  or harm  and  that  is  repeated  over  time,  including  but  not  limited  to  assaulting,  defaming,  terrorizing, [...]  or  invading  privacy.

Subd.  8.  Sexual  Misconduct.  Sexual  misconduct  means  any  non-­-consensual  behavior  of  a  sexual  nature  that  is  committed  by  force  or  intimidation,  or  that  is  otherwise  unwelcome.  Sexual  misconduct includes  [...] gender-­based  harassment.    


If Ms. Hewitt and her EOAA henchpersons had it in for the football program, via a prejudging hostile bias of any degree, and produced the 80 page thing they did behind closed doors as they did, would they not be in breach (at least arguably so) of the Regents view of impermissible and punishable conduct?

Go figure. "Gender-based harassment" is a factor, since the football program is de facto a male gender program, in its essence and universally understood as such.

Consider this online email linked to from this year old Strib item. There was a year-old articulated Hewitt intent and prior animus ill-disposed toward the football program; Hewitt said so in that email to Teague dated June, 2015. The clear conclusion is that the attention to the football program exceeded substantially the attention directed by the Hewitt persons toward the remainder of the student body at large and toward female gender programs of the athletic department.

Footballers were in the crosshairs.

They were singled out for special scrutiny. The football coaching staff appears to be bullied with threat to the Claeys' employment and that of his staff. Ten young men have suffered harm to person with mental stress and anguish inherent in things; and there has as yet been no inquiry into the full extent of conversations and emailings about the football witch hunt, if indeed there was one. Such a line of inquiry may uncover "Scholastic Dishonesty" and "Attempt to Injure or Defraud," given the flabby hyper-vague language the Regents, (presumably at instigation of administrators), adopted in the course of revising the student conduct code, (latest revision June, 2016, a year after the Hewitt to Teague email).

With no hearing record to prove non-bias, a single ad hoc credibility paragraph, and staff conversations and emailings evidence not yet examined, how can Ms. Hewitt's folks prove otherwise than that the investigation was prejudged in a way that could get a student doing the same thing expelled.


Again, off campus reach: If the law does allow such unfettered jurisdiction, say a U student grabbing pussy [to use the President-elect's terminology] when such an act was "unwanted" while on a ocean cruise vacation, the deed done in Mexican waters on a liner from San Diego to Puerto Vallarta? (This would be a student grabber with cash to litigate the question, and of either gender.) What would be the limit to jurisdictional reach, given the express Regents conduct code language would include that? What would you expect our beloved State Supreme Court justices to hold about reasonable/unreasonable jurisdictional assertions by University administrators? Be you liberal or libertarian?

TRUST the prudence and fairness and judgment of administrators? As to Title IX, or otherwise, and your son or daughter in the hot seat, facing expulsion or other penalty? Given the ten footballers and the woman romped off campus where the cops saw video of two men being serviced by one woman which was written by police as appearing the woman was "into it," seeing it as consensual sexual conduct; and the UMn Twin City EOAA pack declined to view video, but somehow found actionable sexual harassment trusting the action, at some point, to have been or to have become nonconsensual; would you trust Ms. Hewitt, Esq., and her EOAA folks? After and in light of that behind-closed-doors conclusory report, would you trust them having your child's fate in their hands, that they'd do a competent, impartial and thorough job? That IS the question, and if you were on a jury what general-background experience and thinking would you bring to deliberation, about credibility under the written facts of the case?

There exists a well-reasoned and quite recent Kansas state supreme court case. Yeasin v. University of Kansas, 360 P. 3d 423 (Kan.App. 2015) examines Title IX issues and is online here, and via Google Scholar citiation with related Kansas case law; here. Readers are encouraged to read the three cases per the latter link; and to note that as a 2015 case in a specialized area of law it does not appear to have been scrutinized outside of Kansas (again, per Google Scholar). Real hounds for punishment among the handful of Crabgrass readers are offered this link; as a starting point for more detailed analysis. Especially this long and tedious hummer (165pages, the word campus used only three times, twice on one page, indeterminate by lacking any claim of off-campus jurisdictional intent).

Yeasin teaches, from its start onward:

During the summer break of 2013, Navid Yeasin engaged in reprehensible, demeaning, and criminal behavior with W., who is also a University of Kansas student. In addition, Yeasin posted a series of puerile and sexually harassing tweets on his account. None of this conduct occurred on campus or at a University sponsored or supervised event. The Student Code, the rules by which the University can impose discipline upon its students, deals only with conduct on campus or at University sponsored or supervised events. We therefore hold that the University had no authority to expel Yeasin. We affirm the district court's similar ruling and dissolve the stay order issued in this case.

[... Events are described.] The State charged Yeasin with criminal restraint, battery, and criminal deprivation of property. Yeasin subsequently entered into a diversion agreement with the State on the criminal charges in August 2013. In a companion case, the Johnson County District Court issued a final order of protection from abuse directing Yeasin to have no contact with W. for 1 year.

[...] On August 8, 2013, an IOA investigator, Jennifer Brooks, interviewed W. regarding her complaint. The IOA opened an investigation. That same day, Yeasin tweeted, "On the brightside you won't have mutated kids. goodriddens." About a week later, IOA Investigator Steve Steinhilber interviewed Yeasin regarding the complaint. Steinhilber advised Yeasin of his rights and responsibilities during the investigation.

After considering the Johnson County District Court's final protection from abuse order, the IOA decided to issue a no-contact order because Yeasin had engaged in abusive and threatening behavior that made W. afraid to be on campus and continued to post tweets regarding W., which were creating further distress and fear. Specifically, the no-contact order warned Yeasin of possible expulsion: [...]

That same evening, Yeasin tweeted, "`Jesus Navid, how is it that you always end up dating the psycho bitches?' #butreallyguys." The next day, on August 15, 2013, Yeasin tweeted, "`Oh right, negative boob job. I remember her.'" A week later on August 23, 2013, Yeasin tweeted, "`If I could say one thing to you it would probably be "Go fuck yourself you piece of shit." #butseriouslygofuckyourself #crazyassex.'" Then, on September 5, 2013, Yeasin tweeted, "`Lol, she goes up to my friends and hugs them and then unfriends them on Facebook. # psycho # lolwhat.'"

On September 6, 2013, W. told Brooks about the August 23, 2013, tweet Yeasin posted. That same day, Brooks sent Yeasin an email to clarify that even though the August 23, 2013, tweet Yeasin posted did not identify W. by name, the tweet was a form of communication in violation of the no-contact order. [...]

On September 17, 2013, the IOA Executive Director Jane McQueeney, concerned that Yeasin's "behavior was escalating" and that he did not understand the no-contact order, conducted a follow-up interview with Yeasin.

At that interview, McQueeney reiterated to Yeasin that both the protection order and no-contact order forbade direct and indirect contact with W. Yeasin acknowledged understanding the no-contact order as meaning he was not to contact W. and stated, "`the twitter thing was a lapse on my part.'" Yeasin expressed that it had not occurred to him that a tweet would be a violation of the protection order or no-contact order and that he had not intended his tweets to reach W. Yeasin stated that he did not post any other tweets about W. after receiving the September 6, 2013, email from Brooks. [...]

The IOA completed its investigation and issued a report to Tammara Durham, Vice Provost of Student Affairs. The report recommended that disciplinary action should be taken against Yeasin. The IOA report concluded that "while some of the conduct in this case occurred off campus this past summer," the preponderance of the evidence nevertheless showed that Yeasin's conduct had affected the on-campus environment for W., thus violating the University's sexual harassment policy. The IOA also found that Yeasin knowingly and purposefully violated the no-contact order by continually "harassing" W. on social media even after being informed that this indirect contact was in violation of that no-contact order. The IOA communicated its findings and recommendations to Yeasin the same day and reiterated to him that the no-contact order remained in effect.

After receiving the IOA report, the Director of Student Conduct & Community Standards, Nicholas Kehrwald, set a formal hearing and gave notice to Yeasin. Pointing to the IOA's findings, Kehrwald repeated the allegations against Yeasin and specified that Yeasin's conduct violated Article 22.A.1 of the Student Code, the University's sexual harassment policy, and the no-contact order. Kehrwald complained of Yeasin's conduct off campus having an effect on campus:

"[R]epeatedly posting demeaning tweets referenced at [W.], physically restraining [W.] in your car on July 1, 2013. IOA's finding was based on the fact that you held [W.], against her will, for three hours in your car, yelled at [W.], called her demeaning names, and threatened suicide when she attempted to break-up with you. The record also indicates that you have had electronic communications directed at [W.] after August 14, 2013. While some of these actions have occurred off-campus, the record demonstrates the relationship and behavior has had on-campus [effects] for [W.]"

[A hearing was scheduled and held before a university created panel ...] In concluding that Yeasin violated the University's sexual harassment policy, the hearing panel found "the behavior of Yeasin is unwelcome, based upon sex or sex stereotypes, and are so severe, pervasive and objectively offensive that they have the purpose or effect of substantially interfering with [W.'s] academic performance or participation in the University's programs and activities."

To support its findings, the panel cited Yeasin's off-campus conduct towards W. on June 29, 2013, his threat towards W. on the morning of June 30, 2013, "indicating he would make the University of Kansas campus environment so hostile, W. would not attend any university in the state of Kansas," and statements made by W. about the impact of her relationship with Yeasin and his actions.

The hearing panel recommended that Yeasin be expelled permanently and banned from the University campus until W. graduated.

After reviewing the complaint, the evidence presented at the formal hearing, and the hearing panel's sanction recommendations, Vice Provost Durham agreed with the hearing panel. The University expelled Yeasin and banned him from campus for violating Article 22.A.1 and the University's sexual harassment policy. In her November 13, 2013, decision letter, Vice Provost Durham found:

Yeasin's "conduct on June 28, 2013 and subsequent electronic communication was so severe, pervasive and objectively offensive that it interfered with [W.'s] academic performance and equal opportunity to participate in and benefit from University programs and activities"; [...]

[Getting to the gist] Yeasin appealed his expulsion to the University Judicial Board. The Board denied him any relief. With this denial, Yeasin had exhausted his administrative remedies. He then sought judicial review of the University's actions.

How the district court handled this matter.
After pointing out that the University presented no evidence that the conduct set forth as the basis for the alleged Article 22 Student Code violation occurred on campus or at a University sponsored event, the district court found that the Student Code, as written, did not apply to off-campus conduct. Specifically, Article 22 of the Student Code stated that the misconduct in question must occur on campus or at University sponsored events. The language relied upon by the University from Article 20—"or as otherwise required by federal, state or local law"—was ambiguous as to providing notice of what conduct was subject to disciplinary action. Article 18, in contrast, provided specific notice when the University may initiate proceedings for conduct violating federal, state, or local law and that such conduct must occur on campus.

Next, given its finding that the University erroneously interpreted the Student Code by applying it to off-campus conduct, the district court found that the University's decision that Yeasin violated Article 22 was not supported by substantial evidence because it failed to establish that Yeasin's conduct occurred on campus or at a university-sponsored event.

The district court ordered that the University readmit Yeasin, reimburse or credit Yeasin for his fall 2013 semester tuition and fees that he paid, and pay the transcript fees. However, the court issued a stay order at the University's request.

The University appeals the district court's grant of relief to Yeasin, and Yeasin cross-appeals the district court's stay of judgment. The American Civil Liberties Union Foundation of Kansas; the Foundation for Individual Rights in Education, Inc., and Student Press Law Center; and Kansas State University each submitted an amicus curiae brief in support of Yeasin.

[Kansas law re deference to "administrative" hearings was explained to allow the Court to review and interpret de novo the University's student conduct code ...] The University's Student Code and sexual harassment policy controls the issues arising in this case. The purpose of the Student Code is to outline the rights of students and many of the standards of conduct expected within the University's community. The Student Code advises that students must "adhere to all published rules, regulations and policies" and the failure to do so may subject a student to disciplinary action. The record on appeal discloses that posttrial, the University advised the district court that in light of its decision, the Student Code has been revised. Those revisions are not in the record and they did not affect the district court's decision. We do not consider those revisions either.

The Student Code and the various University policies create a comprehensive regulatory scheme for the discipline of students. The following specific provisions of the Student Code bear on the issues presented in this case.

Under the Bill of Rights section, Article 2.A guarantees the right of freedom of expression. Article 2.C recognizes the right of a student to be "free from harassment or discrimination based on . . . sex." That article also directs the aggrieved student to University policies on sexual harassment for further guidance and clarifies that the IOA is responsible for inquiries regarding the University's nondiscrimination policies.

[The appellate court cited/quoted specific student code provisions which expressly limit university jurisdiction to on-campus actions or actions at university sponsored events ...] Faced with a serious complaint of sexual harassment involving two students, the University took prompt action. It investigated the circumstances, separated as best it could the antagonists and removed the cause of the conflict through expulsion. The trouble is, the Student Code did not give the University authority to act when the misconduct occurred somewhere other than its campus or at University sponsored or supervised events. There is no proof in the record that Yeasin posted the tweets while he was on campus.

[...] The University asks us to find that the district court should have interpreted the phrase "or as otherwise required by federal, state or local law" found in Article 20 to mean that the University's jurisdiction to discipline a student for violating Article 22.A. extended to a student's off-campus conduct. The University argues that this interpretation of Article 20 is consistent with the obligations imposed on it under Title IX.

The University does not dispute that it used its student disciplinary procedure, i.e., the Student Code, instead of some separate grievance procedures to resolve Title IX complaints regarding sexual harassment grievances.

[Citing a 2011 federal government requirements letter to universities] The "Dear Colleague Letter" specifically warned that if the recipient to Title IX funds relies on student disciplinary procedures for Title IX compliance, it should have its Title IX coordinator review the recipient's disciplinary procedures to ensure that the procedures comply with the requirements of Title IX and then the recipient should "implement changes as needed."

The University's fears of federal reprimands arising from Title IX are not without some merit. The "Dear Colleague Letter" sent to various educational institutions across the country in 2011 is filled with advice, illustrations, and implicit warnings. The loss of federal funding which the U.S. Department of Education suggests is a possibility, would be calamitous.

In particular, one example from the letter is pertinent to this case. It deals with the effect of off-campus events and the on-campus environment:

"Schools may have an obligation to respond to student-on-student sexual harassment that initially occurred off school grounds, outside a school's education program or activity. If a student files a complaint with the school, regardless of where the conduct occurred, the school must process the complaint in accordance with its established procedures. Because students often experience the continuing effects of off-campus sexual harassment in the educational setting, schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus. For example, if a student alleges that he or she was sexually assaulted by another student off school grounds, and that upon returning to school he or she was taunted and harassed by other students who are the alleged perpetrator's friends, the school should take the earlier sexual assault into account in determining whether there is a sexually hostile environment. The school also should take steps to protect a student who was assaulted off campus from further sexual harassment or retaliation from the perpetrator and his or her associates."

Note the letter does not direct the school to take action off-campus. Instead, the letter clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment. It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning.

360 P.3d at 424-430.

Amen, brothers and sisters. Apart from any Kansas-specific administrative law; that last paragraph resonates; both in Kansas and regarding our own Gopher football players' dilemma; with its doubly considered law enforcement determination of non-criminality.

Significant material differences arise re on-campus vs off-campus reach; and if the UMn Twin Cities conduct code attempts to assert off-campus jurisdiction it needs rock-solid authority to back up any such contention. The Kansas appellate court continued:

The University believes that to comply with Title IX requirements it must, and did, extend its jurisdiction to disciplining its students for off-campus misconduct. In contrast, Kansas State University contends in its amicus curiae brief that Title IX does not require a school to sanction students for off-campus conduct.

[...] if we are to agree that the University's jurisdiction to discipline students extended to off-campus misconduct, we must find that power clearly arises from the express framework of the Student Code and not because we simply accept that the authority should be there based on the University's own interpretation of Title IX.

[Giving perhaps undue deference to student code wording in the case before it the appellate court continued ...] The district court did not err in interpreting the Student Code to mean it applies only to student conduct that occurs on campus or at University sponsored activities. Accordingly, because the University erroneously interpreted the Student Code as giving it jurisdiction to discipline Yeasin for off-campus conduct and does not dispute that Yeasin's conduct giving rise to his expulsion did not occur on campus or at University sponsored events, this court need not address the second issue, i.e., whether the University's decision to expel Yeasin was supported by substantial evidence.

Similarly, given our conclusion that the district court did not err in granting Yeasin's petition, we need not address the other questions before us, i.e., whether Title IX permits the University to extend its jurisdiction to discipline student conduct occurring off campus and whether Yeasin's tweets were protected speech under the First Amendment to the United States Constitution.

As a final note, in view of our holding, Yeasin's cross-appeal concerning the propriety of the district court's stay order is now moot.

We affirm the district court's grant of relief, and the stay order is hereby lifted.

Id. 430-32. The Kansas appellate court properly decided based upon the language at issue rather than enlarging its ruling beyond any need to go beyond that text to resolve issues it faced, by imposing a jurisdictional limitation upon the university which it had, by its own code language, imposed upon itself.

That leaves analysis of the bigger question of our wise Regents promulgating off-campus conduct code reach, the question of whether that is Constitutionally permissible or an impaired jurisdictional overreach.

In light of the sound reasoning of the Kansas court, what would you expect from our Minnesota Supremes? Are you ready?

There exists the Tatro case in Minnesota; a published decision at the Court of Appeals level and above, consistent in both courts in its results. Relevant online links courtesy of Google Scholar being accessible online here, here, here, and with the intermediate and final State opinions online here and here.

Examination of the Supreme Court Tatro opinion shows at the outset substantial amicus involvement in briefing. Tatro v. University of Minnesota, 816 NW 2d 509, 511 (Minn. 2012).

The Minnesota courts fudged it up big-time. Four justices took no part in the Tatro decision. 816 NW 2d at 524. Tatro at both levels of review fudged the fundamental question of whether the Regents can properly assert off campus jurisdiction in imposing a penalty; whether that is a breach of due process or whether there is some express statute of Congress or from our legislature granting such jurisdiction. REALLY. And absent express statutory grant of such off campus power, is it inherent in some way, or inferred from Title IX, or consonant and required per some duly promulgated C.F.R. administrative rule (NOTE: even if there exists Department of Education Q and A or other communication from it to Universities under threat of withholding federal funds, is that something - an iron fist without any velvet glove - sufficient to create jurisdiciton out of whole cloth?)

Ms. Tatro was a mortuary post-grad student who posted on Facebook stuff others disliked, a flavor being from this excerpt:

"Bernie" was the name that Tatro had given to the human cadaver on which she and her anatomy laboratory group members were training. Tatro testified that "Death List # 5" is a reference to one of her favorite movies, Kill Bill, and the phrase "Lock of hair in my pocket" is a reference to a song by the Black Crowes, one of her favorite bands.

On the morning of December 14, 2009, the Director of the Mortuary Science Program and other staff members met to discuss Tatro's Facebook posts. The Director testified that "[t]here was a lot of fear" surrounding Tatro's post about stabbing someone with a trocar[2] and hiding a scalpel in her sleeve. According to the Director, the staff members "were very much concerned for their safety," particularly given other well-known episodes of school violence outside of Minnesota. Based on these safety concerns, the Director called the University police. The Director and a University police officer met with Tatro at the University. The Director told Tatro to stay away from the Mortuary Science Department and staff members while the matter was being investigated. University police ultimately determined that no crime had been committed.

Tatro, believing that she had been suspended, attempted to bring attention to her punishment by reporting the incident to, and sharing her Facebook posts with, the news media. After Tatro appeared on local television stations, the Anatomy Bequest Program received letters and calls from donor families and the general public who expressed concerns about Tatro's lack of professionalism, poor judgment, and immaturity. Others questioned the University about the steps it would take to prevent something like this from happening in the future.

On December 16, two days after the Mortuary Science staff meeting, the Director of the Office of Student Conduct and Academic Integrity (OSCAI) informed Tatro that she could return to school to complete her coursework and take her final examinations. The instructor of the anatomy lab course testified that if the timing of these events had been different — not on the eve of finals — she would not have allowed Tatro to come back to the lab or take the final examination and Tatro would not have passed the course. But the instructor consulted the OSCAI, which advised her to let Tatro take the final because "there's going to be some process here."

At the end of the term, the instructor entered Tatro's grade for the anatomy lab course — "MORT 3171" — as a "C+," but notified Tatro by e-mail that the instructor was submitting a formal complaint to the OSCAI. The instructor indicated that the Facebook posts violated the anatomy lab rules and the policies of the Anatomy Bequest Program. The instructor explained that the primary reason for the rules is that "people who have volunteered to graciously donate their bodies for the purposes of anatomy education do so with the intent to teach anatomy, not for the purposes of public display for amusement and fascination." The instructor recommended as a sanction for the violation of these rules "a grade of an F." On December 29, Tatro was informed that the OSCAI was investigating her for violations of the University's Student Conduct Code.

816 NW 2d at 513. Tatro testified at her hearing:

[...] explaining that she uses humor and jokes to release anxiety and to stave off depression due to her unique life circumstances. Tatro suffers from a debilitating central nervous system disease, and she has served as the primary caretaker for her mother, who suffers from the effects of a traumatic brain injury. Tatro intended her Facebook posts to be read only by friends and family who would understand her sarcasm, morbid sense of humor, and references to popular movies and songs. Tatro claimed not to understand that her Facebook posts fell within the scope of the blogging prohibition, but did acknowledge that she understood she was restricted from writing about the details of what she did in the lab and that restriction included Facebook.

Discussing the post about stabbing "a certain someone," Tatro explained that she was referring to an ex-boyfriend who lives in California and had broken up with her the night before she posted that Facebook entry. She knew that he would see the post and stated that she simply wanted him to know that she "was pissed." She also knew that "all the Mort Sci kids" would see the post, but she never intended to incite or induce fear in anyone. Tatro conceded, however, that she could understand how others might misunderstand her sense of humor, especially when taken out of context.

The CCSB found Tatro responsible for violating the Student Conduct Code provision prohibiting threatening conduct. According to the CCSB, Tatro's "postings and subsequent actions were threatening to the person in the posts, the department, and the students and faculty." The CCSB also found Tatro responsible for violating several University rules, which fall within the provision of the Student Conduct Code prohibiting "conduct that violates University, collegiate, or departmental regulations that have been posted or publicized, including provisions contained in University contracts with students." These rule violations included (1) Anatomy Laboratory Rule # 7, which provides in part that "[b]logging about the anatomy lab or the cadaver dissection is not allowable"; and (2) the rules listed on the Anatomy Bequest Program Human Anatomy Access Orientation Disclosure Form. The CCSB decision stated that Tatro's "actions were inappropriate for someone in this profession," indicating that "the reason that these rules are strict is to set standards for behavior from the beginning of the program that will carry into the profession." Therefore, to facilitate the "personal and professional development" of Tatro, the CCSB believed that "it would be helpful for [Tatro] to seek professional guidance." The CCSB imposed the following sanctions:

1. Changing Tatro's grade in MORT 3171 to an "F."

2. Completion of a "directed study course" in clinical ethics.

3. A letter to one of the faculty members in the Mortuary Science Program addressing the issue of respect within the program and the profession.

4. A psychiatric evaluation at the student health service clinic and completion of any recommendations made by their evaluation.

5. Placement on probation for the remainder of Tatro's undergraduate career.

Tatro appealed the CCSB's decision to the Provost's Appeal Committee (PAC), an advisory panel that makes a nonbinding recommendation to the Provost. After a hearing, the PAC recommended that the Provost uphold the CCSB's decision. Provost E. Thomas Sullivan issued a "final decision," which affirmed the findings of the CCSB and the sanctions imposed.

Tatro then appealed to the court of appeals by writ of certiorari, raising several challenges to the University's imposition of disciplinary sanctions. The court of appeals affirmed the sanctions, concluding that (1) the University had jurisdiction to conduct the disciplinary proceedings, (2) sufficient evidence supported the University's determination that Tatro had violated University rules, (3) the University had the authority to change one of Tatro's grades as a disciplinary sanction, and (4) the University did not violate Tatro's free speech rights.

Id. at 514-15 (italics emphasis added). This case hinged upon speech, Facebook posting, presumably some of which was done off campus.

And, here is the nub of things: The Minnesota Supreme Court declined on a technicality to rule on the question of off-campus jurisdiction; Id. at 515-16; with its opinion only touching upon Constitutional free speech issues.

The word "jurisdiction," never is mentioned after the Court's language - a single use of the word - as quoted above at the cited pages in the text italicized for emphisis. Just once. REALLY.

Examining the Court of Appeals decision is hence proper, since whatever it said about jurisdiction, if anything, would not have been reviewed, affirmed, or reversed (in whole or in part) in the higher court review. The top court simply ducked the question on a technicality; and that opinion, moreover, was by less than a complete court.

Tatro v. University of Minnesota, 800 NW 2d 811 (Minnapp. 2011) was decided by a three-judge panel without dissent and without en banc review. Jordan Kusher represented Tatro at both appellate levels. There was no amicus briefing before the Court of Appeals. It is unclear from opinions how much, if any, amicus attention was devoted to questions of jurisdiction, which, as noted, the Supremes, based on a technicality, hid from.

Without review of detailed facts in this post, but via a running search of the online text for the word "jurisdiciton," Judge Bjorkman wrote:

On March 25, 2010, a panel of the campus committee on student behavior (CCSB) held a hearing. Tatro's attorney challenged the committee's jurisdiction and requested a continuance, but the panel proceeded with the hearing. The panel heard testimony from Tatro and several other witnesses, including Lubrant; Angela McArthur, Tatro's professor for the anatomy-laboratory course; embalming-laboratory instructor Jody LaCourt; and another mortuary-science student.

Id. at 815. The word "jurisdiction" never appeared again. This is all Judge Bjorkman choose to write:

A. Off-campus conduct

Tatro first argues that the student-conduct code does not apply to her off-campus conduct. Section II of the code provides:

The Student Conduct Code (Code) shall apply to student conduct that occurs on University premises or at University-sponsored activities. At the discretion of the president or delegate, the Code also shall apply to off-campus student conduct when the conduct, as alleged, adversely affects a substantial University interest and either:

(a) constitutes a criminal offense as defined by state or federal law, regardless of the existence or outcome of any criminal proceeding; or

(b) indicates that the student may present a danger or threat to the health or safety of the student or others.

Tatro contends that she created her Facebook entries off campus and they were not related to a university-sponsored activity. Even accepting Tatro's contentions as true, the code expressly authorizes the university to apply the code to students whose alleged off-campus conduct has an adverse effect on a substantial university interest and indicates potential danger or threat to the student or others. See Code Section II(b). Tatro asserts that construing her posts as serious threats is "irrational and unreasonable," noting that the police concluded that no crime was committed. We are not persuaded.

Tatro's posts referenced, albeit anonymously, an anatomy-bequest program donor, spoke of taking out "aggression" in a university class, and mentioned wanting to "stab" an unidentified individual with a trocar [which is a sharp fluid-draining mortuary implement]. Whether or not Tatro intended her posts to be satire or mere venting does not diminish the university's substantial interest in protecting the safety of its students and faculty and addressing potentially threatening conduct. Indeed, the realities of our time require that our schools and universities be vigilant in watching for and responding to student behavior that indicates a potential for violence. Accordingly, we reject Tatro's argument that the university lacked authority to initiate disciplinary proceedings because Tatro created the posts off campus.

Id. at 816-17. Zippo analysis of any reasonable norms of jurisdiction beyond buildings and cutilage of the campus grounds.

It remains an open question. One would have to examine actual Supreme Court amicus briefing to see if the issue the Supremes ducked was well briefed or ignored. By their bypassing the consideration one can guess it was well briefed and cut against the result the part of the Court involved wanted to write up for public attention. Ducking an issue such as jurisdiction, on a technicality, is bullshit. But how things happened. Our ten football guys appear to have a clean slate, on that key issue.


NOTE: WRAP-UP TIME. The muddy waters of Department of Education Title IX guidance and communication to institutions (under threat of withholding federal funds), is an absolute intellectual quagmire [one might call it a swamp needing to be drained] and is NOT examined at any length in this post, which already is lengthy.

There is this most helpful post online referencing the already analyzed "Jayhawk" case, but also mentioning and linking to a "2011 Dear Colleague Letter" and an "April 2014 Questions and Answers on Title IX and Sexual Violence," DoE thing, but deciding whether that brand of non-C.F.R. stuff represents good and binding administrative law on the fundamental jurisdictional question is skating on thin ice, liking it or hating it, thin ice either way.

Whether those two informal things reflect any well promulgated C.F.R. law, or merely the wishes of DoE staff wanting things a certain expansive way but declining for whatever reasons (lassitude perhaps) to do formal and proper rule-making under the Administrative Procedures Act, is an area ripe for somebody else to examine. Comment shall be held brief in the remainder of this post.

Proper rule making by our beloved federal Department of Education would have yielded less muddy waters, and may have actually happened, with due Administrative Procedures Act requirements met to have given proper prior notice to the public of what is afoot, thus avoiding surprise; with the public having rights to participate in proper rule making hearings. And if Department of Education C.F.R. text were to have been duly created, public notice instead of traps laid for the unwary would be the decent and proper outcome. It has been reported the U instituted conduct code seminars for incoming scholarship athletes, presumably too for all incoming students, so we do know that at least there has been Regents' conduct code notice.

Yet even then; can a campus authority have policing duties of any meaningful nature off campus, absent an express federal or state statute? Is an administrative rule, presuming one might exist, enough?

Also, even if there is or had been due process with due notice via C.F.R. rule making, language such as "off-campus conduct detrimental to the reputation of the university or having a detrimental effect upon the educational experiences and potential of a student" as a cause to sanction might, if judicially tested, be held void for vagueness. Ditto for the above quoted Regents code. [Void-for-vagueness as a standard in punitive law context is its own thick brier patch, and is left aside, as such.]

Also, if you dislike how the owners of the Radius run their off-campus privately owned housing operation, and decline to buy the owners out; you can organize a boycott. [Boycott law also being a brier thicket others can explore at will.]

Campus police and outside police can deputize one another, and the criminal code of the State governs on and off campus. But -AGAIN - the County Attorney declines to prosecute; and properly so, as many will conclude.

Not that Mr. Kaler amd Ms. Hewitt, Esq., care for any limited jurisdiciton line of argument. Power grabbers seldom care for power limitations; although ill-motives cannot be attributed to the act of exceeding one's powers and jurisdiction where bounds are muddied and uncertain; (nor is bad motive or wrongful state of mind needed to defeat a jurisdictional overreach by on-campus holders of power - motives being irrelevant to whether jurisdiction exists or not).

I am not an attorney; Ms. Hewitt, Esq., is, so she can make an argument and present sound jurisdicitonal authority, (i.e., statutes, rules and/or judicial precedent), if held to do so by press and public and the courts, should the sanctioned young men or any part of the group wish to instigate a judicial test.

If the sanctioned football players sue and win, damages for harm to reputation and intentional or negligent impairment of future earning power could be litigated, given the pay levels in player/franchise free agency and other aspects of NFL collectively-bargained contract terms.

Interestingly, if the woman sues the U alleging insufficient institutional control, would the U then argue against her credibility? That only consensual sex happened? That the U has no responsibility nor jurisdiction off campus? Have Kaler and Hewitt handed out a bonanza?


Oh, well, if we have a big payout, just raise tuition . . . Folks pay.

Do note, there are footnoted cases in that screen capture that can be studied, Crabgrass has not looked there, and any reader having a look is asked to indicate whether off campus jurisdiction was an issue or factual condition in any of them. They exist. Readers have notice. Readers can learn more, if they've the will and the time.

LAST: The law-firm writeup noting the "Jayhawk case" states:


How must a School Conduct its Grievance or Disciplinary Procedures?

The accused student and the victim have equal rights throughout the process:

-- Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses, cross-examine witnesses, and present other evidence.
-- Both the accused and the victim have a right to review the evidence and the right to hear and question relevant evidence and witnesses.
-- The victim and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.
-- If a school provides for appeal of the findings or remedy, it must do so for both parties.
-- In addition, both the accused and the victim must receive a written determination.
-- If a school allows an attorney or advocate to be present, it must do so for both parties.
-- If a school allows third party expert testimony, it must do so for both parties.

The Office of Civil Rights does not require that a school allow the student to be present for the entire hearing. However, if the school allows on [sic, one intended] party to be present for the entirety of the hearing, it must do so equally. When requested, the school should make arrangements so that the student and the alleged perpetrator do not have to be present in the same room at the same time. Additionally, the school must not require a student to be present at the hearing as a prerequisite to proceed with the hearing.

Even if a victim does not want to continue to participate in the investigation, a college or university is nonetheless obligated to conduct and conclude an adequate, reliable investigation and, as appropriate, take steps to remedy the effects of any harassment, and prevent it from recurring. Such steps can included, for example, offering counseling services and implementing other measures, independent of disciplinary action, that could assist victims and/or address sexual assaults on the campus at large.

Note a lack of attention to off-campus in the last quoted listing/summary; also note steps bulleted at the beginning which seem absent from the ways and means set up by Ms. Hewitt, Esq. and her subordinates, at least as reported; wherein the young men via counsel were not reported to have had any cross-examination opportunity and there even is no indication of counsel being allowed present or testimony being "under oath and/or under penalty of perjury." Basic law school Civil Procedure 101 stuff. Not arcane, but not required by Department of Education specification either.


-That's All Folks - [misspellings, sentence fragments, and all]

______________UPDATE_______________
BRIEFLY: Questions of jurisdiction to adjudicate, the judicial function, are noted in Minnesota's Constitution Article VI, and aside from constitutional tribunals, with language, " ... such other courts, judicial officers and commissioners with jurisdiction inferior to the district court as the legislature may establish." If the legislature has not designated University tribunals to have off-campus jurisdiciton, they cannot designate themselves that way, as the Regents conduct code on its face purports to do. The legislature does the delegation, or there is none.

Beyond that, jurisdiction is a many splendored thing, with nuances, conditions, exceptions and all; with Title IX being federal law, where also judicial jurisdiction is set by the legislative branch; e.g., judicial powers in immigration matters coming to mind as exceptional with regard to court powers. The US Constitution is parallel to Minnesota's in that jurisdiction of lower tribunals must be clearly legislated; or strictly implied from some specific legislative law.

It does not spring into being ad hoc, no matter how many school Regents might wish otherwise. Can the school district curb your high school child's Facebook posting from home? I do not know; but do you? Is it worth your concern? Can they suspend your child over things written by the child on Facebook or Twitter, from home and not at school? You ought to know, or you might learn the hard way.

___________FURTHER UPDATE_____________
BRIEFLY: Yeasin, in reaching the highest state court level, had substantial amicus briefing similar to that in Tatro in Minnesota at the Supreme Court level of review. Presumably it dwealt with off-campus jurisdiction as a question because in Yeasin KU did argue off campus jurisdiction in one part of the student conduct code; with the Court rejecting the suggestion because the core provision did not contain off campus language.

There is also Goldman v. University of Kansas, 365 P. 3d 435 (Kan.App. 2015) of interest to the question of how an action by the ten footballers or any one or several of them for damages might be pleaded and litigated. Kansas seems ahead of us in University/student litigation over penalty application of conduct codes; etc.

__________FURTHER UPDATE_____________
Claeys fired. Look for these people to hire another Tim Brewster. Looks the part more than Kill or Claeys; can't win. There will be a backlash, when the losing starts. Unless they get somebody who can beat Washington State and win Big 10. Bet on losing, hope it is not so. Boy, could that Brewster recruit and coach. Just, too few points, it being the athletes' fault.

Who'd take the job, after the track record the school's put up since Glen Mason, who did okay sometimes and got fired? Take the job from the ones who threw Claeys under the bus? What's it going to pay, and Hewitt will stay. Who'd step up to that plate?

_________FURTHER UPDATE____________
Coyle's proven to be a politician.

That said, the counterargument on jurisdiction would be that the relationship between a university, where attendance is a privilege and not a right, is by a student accepting a contract, that contract including a student promise to follow the school's conduct code, or to suffer consequences including expulsion. That is what the UMn TC campus Regents' conduct code sets. The university board, ultimately and acting through its administrators and teachers set the offering terms, a student accepts one university's terms, or shops and attends a different institution. So how is jurisdiction even a question? Offer-acceptance, and follow the rules. Nails standing up get hammered down. After all, it is preparation for the real world.

Well, that is where the Hutton representation of the students stands. Substantive terms and conditions is a thing apart from procedural due process, and just fairness. In that Regents code (so far but unilaterally subject to change) the Regents in their endearing gratis - collectively by majority vote allow that exercise of code penalty shall be subject to procedural "due process" with that University Regents' promise being that, despite the substantively so-elastic-it's-arguably-void-for-vagueness thing, nonetheless, procedurally, Regents promise and constrain management underlings:

SECTION II. GUIDING PRINCIPLES.
[...]
(f) Students are entitled to the rights and responsibilities of other citizens with regard to freedom of speech, peaceable assembly, and right to petition. Students are entitled to exercise their rights to inquire and dissent, speak freely, and peaceably assemble and protest to the extent permissible under both the First Amendment and the Student Conduct Code.
(g) Students are entitled to due process and procedural fairness protections, including the prompt notification of charges, the opportunity to respond, the right to an advocate of choice, and the right to the resolution of a case within a reasonable period of time.

Subsection (g) has the "due process and procedural fairness" language, and attorney Hutton on behalf of his clients has that on which to hang an argument. Sub. (f) is presented, and the contract argument noted, in that forming a collective bargaining unit of football players seems implicit in sub. (f), and should be tested. Every public employee in a bargaining unit should support such an enlargement of organized labor; each having benefitted from being organized and not facing the power of the State as lone individuals.

If there is a contract having language that permits organizing a collective bargaining unit, regular citizen rights of peaceable assembly and such, then instead of a boycott the players not already kicked out per the Hewitt document, those players, should get union cards and then labor can face management and bargain.

A scholarship for risk of permanent disability and brain damage is a crappy deal, and collectively a better deal should be possible.

Pay me if you play me. The NFL makes its business money that way, etc.

The case will meander to back page news as a coaching search moves front page, but "due process" should include the question of jurisdictional overreach as a part of any "procedural fairness" basis of challenge. Clearly "due process" and "procedural fairness" are vague words, alone, so the meandering will be through case law as precedent.


BOTTOM LINE: If it is a contract, and now a scholarship for participating at great personal risk of personal injury and harm in generating a giganto mega cash flow stream for the U AND keep your nose clean is the deal, a better contract in its terms and condition should be feasible, collectively.

Why not? What's the problem?

NEXT, looking at the tail end of the Regents code, in light of proper use of the English language and such as well as competent legal draftmanship; and in light of the Regents bothering to carefully define "campus" in Sect. III, subd. 2 as

Campus shall mean all University premises, including all land, buildings, facilities, and other property owned, possessed, leased, used, or controlled by the University, and adjacent streets and sidewalks.

Why define it if it is to be wholly irrelevant as to reach? That's senseless baggage wording, unless it is important, somehow.

NEXT:
SECTION VIII. JURISDICTION.
Subd. 1. The Student Conduct Code shall apply to student and student group conduct that occurs on campus or at University-sponsored activities.
[...]
Subd. 3. At the discretion of the president or delegate, the Student Conduct Code also shall apply to offcampus student and student group conduct when the conduct, as alleged, adversely affects a substantial University interest and either:
[...]

Sect. VIII, subd. 3 having been noted earlier. Read together, the right hand giveth, the left hand taketh away; and that's curious to find in a legal document drafted by presumed University professionals with due attention to consistency and detail.

Well, gee, now, this sure looks like the Kansas Yeasin case, doesn't it? With contradictory language about "campus" and "off campus" where in Kansas, the tail does not wag the dog.

Can "at the discretion of the president" render the first and foremost promise a total nullity? Is that within good legal drafting, to make a promise and then two paragraphs lower say, "Not really?" And if so, why bother defining "campus" if it is irrelevant should the President [king?] want otherwise. Is that proper for an institution of higher learning to play, effectively, a shell game? Not so, in Kansas, and it should not be so in Minnesota, where all our children are above average. And what legitimate reach and not overreach does the University have in a private off campus bedroom of a student. Has privacy degenerated to the degree implied, when Freeman declines to prosecute? Again, in Kansas there is wisdom and a proper sense of perspective:

Note the [2011 DoE Dear Colleague] letter does not direct the school to take action off-campus. Instead, the letter clearly advises that the school must take steps to prevent or eliminate a sexually hostile environment. It seems obvious that the only environment the University can control is on campus or at University sponsored or supervised events. After all, the University is not an agency of law enforcement but is rather an institution of learning.

360 P.3d at 424-430. And that is with the substantial help of extensive amicus briefing and participation before a top state court; not a preliminary step of some minor level UMn panel producing 80 pages of sophistry. And in that Kansas Yeasin quote, the Kansas operative language tracks verbatim the Jurisdiction, Subd. 1 Minnesota Regents' code language. Kansas law is not binding precedent, obviously, but it is sane guidance; "After all, the University is not an agency of law enforcement but is rather an institution of learning."

Attorney Hutton should have a good time if, hopefully, somebody has the cash to invest in keeping his meter running.

FURTHER AND THIS IS LAST: Looking at the Sherman Act, isn't the NCAA a "contract, combination, or conspiracy" in constraint of commerce?

They band together with each institution giving up a part if its freedom of contract, to collectively run all of college athletics income generation in a clear monopoly manner; and by that banding together they constrain commerce to the disadvantage of bargaining rights of student athletes, individually and collectively. Why not look at that cash cow that way? In fairness, even if the real world is as tilted as it now stands. We can have a better world, a nation great again, where college football player collective bargaining would be but a small part. Just drain that NCAA swamp.

FURTHER - FOR COMPLETENESS BASED ON ADDITIONAL RECENT NON-MINNESOTA CASES. This blog was found after all of the above was authored. It names two recent cases without links. It is believed the two cases are online here and here. However, one case titled Doe v. University of Cincinnati, yielded ambiguity (multiple cases so titled). From the case opinions of the two linked above, it appears the proper cases were ferreted out. One case, from Washington, is on procedural due process dimensions of a hearing under a state APA. The other is a due process challenge of university hearing dimensions, from federal court (Doe v. University of Cincinnati). Whether Minnesota has an APA comparable to Washington's was not researched; but the other case cited federal law on due process hearing procedures [cross examination opportunity, reliance only on University staff investigative notes in a "hearing."] Neither case contested jurisdiction as did the case from Kansas.

FURTHER - AGAIN FOR COMPLETENESS: Minnesota has an APA, and at Sect. 14.57 Minn.Stat. et seq., contested case procedures are spelled out. It is not known whether the University has some exemption from APA adherence for its Title IX indictments for academic penalty, but it arguably should not. There is this Google Scholar search, with none of the returned cases researched. If any touch Title IX university penalty, additional research would be needed to identify such application. Interestingly, APA assertions appear absent from Tratro litigation, perhaps by strategic decision of the complaining party and counsel.

FURTHER-FINAL: This link. In the past some young black men got a bad press. A solidarity show before the bowl game led to public demonization; and if you do that by an institution of learning "investigation" you damned well have to do it as clean as you can and not half-assed as if it deserves indifferent care; work up 80 pages and throw it over the transom; glib on credibility and such with consensual the only allowed defense. Dot the i, cross the t, and look at the real problem which is the party hopping week-end habit thing shown by the situation at the U where people are not learning what's at risk where the real world is no party after eligibility is used up; for many, not all, but too many. Malcolm made early mistakes too.

______________FURTHER UPDATE______________
Having never met any of the persons in administration at the U, nor coaches, nor a single one of the players, nor attorney Lee Hutton [readers should do a websearch, it appearing the sanctioned players are well represented]; there is guessing, and "what if" to this post. Strib reporting is the main source of fact, and bless those who posted the police report and the 80 page thing. There is new reporting and hence this new UPDATE.

The Regents' student conduct code requires due process and fair procedures, and the US DoE has guidelines but not requirements, that way; this item,, summarized here. The second item's laundry list of things apparently omitted and/or fudged over by the Hewitt subordinates [EOAA and/or other possible boards/panels, details being available from the U] is appalling if reporting did not merely omit as detail actual and important procedures that were used but instead the U moved without regard to what the DoE noted as better practice.

If processes were not reported because of being absent from the steps leading to the 80 page conclusory thing, the item is near worthless, given the Regents promise of due process. What DoE seems to make optional from its standpoint is irrelevant to what a Regents "due process" promise means. It is that simple. The basic Warren Court insights into minimal due process rights of the accused (i.e., when penalty is at issue) including Miranda warnings and advice of right to counsel being present before questioning and right to silence, if met, went unreported. Detail of of any such procedural steps being articulated was not found in what admittedly was a scan-read of the 80 page thing.

It is not for attorney Hutton to prove the process flawed, it is in this first instance multi-player punishment incumbent on the highly compensated top administrators, including but going beyond Hewitt to Kaler at the top since Hewitt is merely his surrogate, to justify administrative conduct as beyond being a kangaroo court, as if the Lewis Carroll Red Queen's trial of the Knave.

Kaler and Hewitt are paid to administer duties properly. That's a bottom line truth. Hutton may well be representing players pro bono, and if these players putting their brains and bodies at risk every Saturday during the season, they earn millions for the U and end up having to sleep on a mattress on a floor, off campus; then there is a disconnect if anyone is demanding the players find cash to protect themselves in litigation or in the alternative, just accept what's handed them and go away.

Bottom line seems to be go back to square one, a new and fully proper evidentiary hearing, counsel present to cross examine, but then time has put expelled students in a position of not being immediately on campus regularly for attending hearings. Also the woman complainant was reported as having vague memory shortly after the night of the situation, and bad memory over time is even more prone to misrecollect, dreams and memory of a likely traumatic event likely mixing more and more as time passes. Hence lack of due process in the immediate time after the event cannot truly be fully remediated by reopening square one.

Recall, the boycott ended without any temporary reinstatement - no stay of penalty - while due process or its grotesque absence is determined, in this instance, ex post facto. Yet, a new hearing, done in an adversarial evidential setting (vs a one-sided possibly ad hoc initial "fact finding" procedure as implied in press coverage).

BOTTOM LINE: One would think a lack of meeting the Regents' promise of due process, if that is the case, would shock the conscience of each and every person holding the oversight function of being a Regent. One would think.

Yet exploitation of "student athletes" has not shocked their consciences; the cash flowed from men's football/basketball being massive, and welcome, at the Regents level and below. It has been reported that the contract buyouts of the majority of the coaching staff (with two coaching contracts not terminated) are well within the cash flow from the football program, a buyout cost level of five million bucks being reported.

The case pits supporters of the football team against those who felt Claeys improperly defended players accused of taking part in a gang rape. The students were not charged with any crime, but 10 players were suspended from the team in December after a university investigation of the incident.

As the public debate rages on, Pelowski said he’s heard grumbling at the Legislature about the estimated $5 million that it will cost the U to buy out the contracts of Claeys and most of his coaching staff. “There’s big numbers in play when you fire a coach and hire another,” Pelowski said.

That could be a key topic, he noted, when the U submits its formal request to the Legislature this session for an extra $147 million. “If you can pay for people who aren’t coaching,” said Pelowski, “why do you need money from us?”

Dean Johnson, a former state legislator who now chairs the Board of Regents, acknowledged that’s a challenge the university will have to face.

“Any time you have a blemish or a misstep, which has happened at the University of Minnesota, that needs to be cleared up,” he said. “Those questions need to be addressed. This is not going to go away.”

At the same time, he said, “We hope that we will have a compelling argument, and we won’t be penalized for what is happening.”

University President Eric Kaler declined to be interviewed Thursday, but he issued a statement noting that the athletic budget draws “only slightly from state funds” and relies mainly on ticket sales and other revenue. He added that, under state law, state funds cannot and will not be used “to fund termination payments to coaches.”

Get that: Kaler says they can gin up five mil, no problem, from football program income; people wanting to watch the players and not Kaler or the coaches; and the players end up sleeping on a mattress on a floor off-campus, one blanket. Five million to buy out coaching; no bargaining rights nor suitable compensation at all to the youth having brains and bodies at risk every Saturday and in practices. Fairness may have degrees and shadings; but naked exploitation when truly raw is easily seen and criticized; despite Regent and administrative myopia and dissembling on the part of NCAA officials.

Exploitation of "student athletes" back in 1968 raised fist days was real, and how have we since then progressed? Not according Regent promised [a/k/a demanded] due process in punishing ten young men appearing to have been too inconvenient or not really needed in UMn administrative viewpoints seems to evidence a lack of progress, and perhaps a throwback.

LAST: The summarization online of the DoE's 2014 Q and A item (with the shopping list of procedual thought quoted in earlier text above) did note one curious thing:

-- Both the accused and the victim have a right to review the evidence and the right to hear and question relevant evidence and witnesses.

In 80 pages, there is no indication of such precaution; whereas the athletic department swims in video tape equipment, (reviewing and learning error from game tape being an integral part of what coaches require of players in the course of coaches earning their favorable levels of pay). So, video equipment beyond doubt is floored and available and Hewitt knew that all the time she moved as she did, even if her boards/panels below her that generated the 80 conclusory pages might not have known.

Who believes attorney Hutton has a video record to review in the course of finding substantive and/or procedural error? Do you? Who believes attorney Hutton had any chance to represent his clients at critical junctures; would he or anyone be shown in a tape cross examining the complainant? Wake up, open your eyes, and ask, what's happening? Pay attention to how attorney Hutton does his best while the story goes backpage with the press, after boycott, bowl victory, and coaching contract buyouts. Learn something.

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