My small theory on the situation

[moytoy12]

7 minutes ago, cheeseman said:

That is a much bigger issue - they will not want to probably weigh in on the bias or not bias part - I find it hard to believe that the handbook prohibits the review of all aspects of the matter.  I have not read the policy and apparently you have so all I can say is that is very odd.

Here are the matters that can be taken up on appeal (from a tweet by stu):

"The grounds for appeal may only be one or more of the following:

- There was a material deviation from the procedures set forth in this Policy or applicable provisions of the Student Handbook that would significantly impact the outcome of the case or may have resulted in a different finding; 

- New or relevant information, not available at the time of the investigation or determination of responsibility, has arisen that would significantly impact the outcome of the case. 

Dissatisfaction with the outcome of the investigation, and failure of a party or witness to attend or participate in the investigation or hearing process, are not grounds for appeal."

I misstated the last part a bit.  I stated that you can't review the reasonableness of the punishment, but it says that dissatisfaction w/the outcome is not grounds for appeal. Nevertheless, I read that to mean that you can't appeal the reasonableness of the punishment levied.  The 2 grounds are: (1) the process was messed up, or (2) new information. 

Regarding #1, I think the players will have a very tough time convincing the panel that the process was messed up given that SLU gave itself the appearance of following the process (i.e. hired an outside investigator, talked to witnesses, talked to accused, gave notices, etc).  I'm not agreeing that SLU did things right, but I suspect they can point to the policy and say "look, we followed our process. In fact, the delay in coming to a final decision was so we could make sure we dotted all the i's and crossed all the t's." I don't think there is much room to discuss hearing officer bias under this standard (although I suspect such biased played a HUGE role in the punishment provided). 

Regarding #2, unless an accuser completely flips, I don't suspect there is any new information that will provide a material impact on the outcome.  

[cheeseman]

10 minutes ago, moytoy12 said:

Here are the matters that can be taken up on appeal (from a tweet by stu):

"The grounds for appeal may only be one or more of the following:

- There was a material deviation from the procedures set forth in this Policy or applicable provisions of the Student Handbook that would significantly impact the outcome of the case or may have resulted in a different finding; 

- New or relevant information, not available at the time of the investigation or determination of responsibility, has arisen that would significantly impact the outcome of the case. 

Dissatisfaction with the outcome of the investigation, and failure of a party or witness to attend or participate in the investigation or hearing process, are not grounds for appeal."

I misstated the last part a bit.  I stated that you can't review the reasonableness of the punishment, but it says that dissatisfaction w/the outcome is not grounds for appeal. Nevertheless, I read that to mean that you can't appeal the reasonableness of the punishment levied.  The 2 grounds are: (1) the process was messed up, or (2) new information. 

Regarding #1, I think the players will have a very tough time convincing the panel that the process was messed up given that SLU gave itself the appearance of following the process (i.e. hired an outside investigator, talked to witnesses, talked to accused, gave notices, etc).  I'm not agreeing that SLU did things right, but I suspect they can point to the policy and say "look, we followed our process. In fact, the delay in coming to a final decision was so we could make sure we dotted all the i's and crossed all the t's." I don't think there is much room to discuss hearing officer bias under this standard (although I suspect such biased played a HUGE role in the punishment provided). 

Regarding #2, unless an accuser completely flips, I don't suspect there is any new information that will provide a material impact on the outcome.  

Once the findings were given to the parties if Rosenbloom filed any changes then that is the grounds right there.  Once the review is underway then I would think all is fair game.  

[kshoe]

10 minutes ago, moytoy12 said:

Here are the matters that can be taken up on appeal (from a tweet by stu):

"The grounds for appeal may only be one or more of the following:

- There was a material deviation from the procedures set forth in this Policy or applicable provisions of the Student Handbook that would significantly impact the outcome of the case or may have resulted in a different finding; 

- New or relevant information, not available at the time of the investigation or determination of responsibility, has arisen that would significantly impact the outcome of the case. 

Dissatisfaction with the outcome of the investigation, and failure of a party or witness to attend or participate in the investigation or hearing process, are not grounds for appeal."

I misstated the last part a bit.  I stated that you can't review the reasonableness of the punishment, but it says that dissatisfaction w/the outcome is not grounds for appeal. Nevertheless, I read that to mean that you can't appeal the reasonableness of the punishment levied.  The 2 grounds are: (1) the process was messed up, or (2) new information. 

Regarding #1, I think the players will have a very tough time convincing the panel that the process was messed up given that SLU gave itself the appearance of following the process (i.e. hired an outside investigator, talked to witnesses, talked to accused, gave notices, etc).  I'm not agreeing that SLU did things right, but I suspect they can point to the policy and say "look, we followed our process. In fact, the delay in coming to a final decision was so we could make sure we dotted all the i's and crossed all the t's." I don't think there is much room to discuss hearing officer bias under this standard (although I suspect such biased played a HUGE role in the punishment provided). 

Regarding #2, unless an accuser completely flips, I don't suspect there is any new information that will provide a material impact on the outcome.  

If we are indeed already in the appeals process, which seems likely given that everyone played on Saturday, wouldn't that be evidence that the appeal would be heard? I suppose there could be some time-frame in which they appeal but it's not immediately rejected because it doesn't fit  (1) the process was messed up, or (2) new information, but I'd think that time has already passed.

[moytoy12]

4 minutes ago, cheeseman said:

Once the findings were given to the parties if Rosenbloom filed any changes then that is the grounds right there.  Once the review is underway then I would think all is fair game.  

If you're talking about when the final report was given to Rosenblum in December, then the determination of responsibility that came out last Friday presumably took Rosenblum's comment into account. 

Just to be clear, i think the extremely narrow scope of appealable issues is b.s.

[slufan13]

I don't see SLU being able to get away with not allowing the entire appeal process to play out even if the grounds for the appeal for shady. I'm not saying anything good will come from the appeal but I think we go through the whole 13 day process and the players will get to state their case. It might just be to a 3 person appeal committee who have already made their mind up that nothing will change. 

[Bobby Metzinger]

I'd like to compare and contrast the SLU handbook from the 2010-2011 academic year to this one.

[moytoy12]

3 minutes ago, kshoe said:

If we are indeed already in the appeals process, which seems likely given that everyone played on Saturday, wouldn't that be evidence that the appeal would be heard? I suppose there could be some time-frame in which they appeal but it's not immediately rejected because it doesn't fit  (1) the process was messed up, or (2) new information, but I'd think that time has already passed.

I suspect the player(s) would appeal, then the respondent (non-appealing party) has its 3 days to respond and then the panel has the 10 day window.  If the appeal is based on non-appealable matters, then that will be the final finding by the panel.  Assuming this process follows any type of legal standard or process (which is a dubious assumption), the players could appeal something not ripe for appeal (I'm sure their attorney(s) couched the language within the 2 grounds for appeal) but it wouldn't automatically get kicked out.  They would proceed with the appeals process and just make a final decision that the players appealed issues that are not appealable.

[billiken_roy]

moytoy, i am not an attorney nor do i have college administration experience in title 9 affairs, however couldnt the fact that the decision maker has been found to be a far left feminist with a history of bias against the black male defendant have "new information" tendencies?

[moytoy12]

Just now, billiken_roy said:

moytoy, i am not an attorney nor do i have college administration experience in title 9 affairs, however couldnt the fact that the decision maker has been found to be a far left feminist with a history of bias against the black male defendant have "new information" tendencies?

Possibly. And I'm confident that played a substantial part of the punishment determination.  However, no way the appeals panel touches that with a 10 foot pole.  Also, whether the hearing officer's bias had such an impact (I believe it did) will be very difficult to prove under this appellate process. 

The main problem i see here is that the appeals panel will be going with form over substance.  If it looks like SLU adhered to its process then that will be good enough for the panel.  

[cheeseman]

4 minutes ago, billiken_roy said:

moytoy, i am not an attorney nor do i have college administration experience in title 9 affairs, however couldnt the fact that the decision maker has been found to be a far left feminist with a history of bias against the black male defendant have "new information" tendencies?

I am not sure the appeals board will want to get into that kind of thing - talk about a can of worms.  Now if you can show that she made a mistake or placed undue value on something or not on something then that is another matter entirely.  I still contend that if SLU has any brains what so ever then they can find away out this that still protects their original findings and shows some understanding to the players.

[Quality Is Job 1]

1 minute ago, moytoy12 said:

Possibly. And I'm confident that played a substantial part of the punishment determination.  However, no way the appeals panel touches that with a 10 foot pole.  Also, whether the hearing officer's bias had such an impact (I believe it did) will be very difficult to prove under this appellate process. 

The main problem i see here is that the appeals panel will be going with form over substance.  If it looks like SLU adhered to its process then that will be good enough for the panel.  

I wonder if there were any disparities between the outside investigators' report and the hearing officer's ruling that the attorneys may focus on.  Obviously, we have no idea what was in the report, but the representation must have reviewed it.

[billikenfan05]

2 minutes ago, Quality Is Job 1 said:

I wonder if there were any disparities between the outside investigators' report and the hearing officer's ruling that the attorneys may focus on.  Obviously, we have no idea what was in the report, but the representation must have reviewed it.

I’m guessing that is exactly what happened. Katherine Weathers was appointed to make sure the University got the outcome they wanted.

[moytoy12]

Just now, Quality Is Job 1 said:

I wonder if there were any disparities between the outside investigators' report and the hearing officer's ruling that the attorneys may focus on.  Obviously, we have no idea what was in the report, but the representation must have reviewed it.

Good question.  But I wonder if it matters? I think you're getting into matters of "dissatisfaction with the outcome of the investigation", unless the players can show that SLU's process is to adopt the investigator's recommendation.  

[brianstl]

Moy,

Couldn't the appointment of Weathers, regardless of her politics, be seen as a conflict of interest that institutions are told to avoid because in her normal role at SLU she writes the rules and policies she is using to adjudicate as a hearing officer?

[kmbilliken]

How did the overnight bag case get reversed? Was hat at the appeal stage?

[moytoy12]

1 minute ago, brianstl said:

Moy,

Couldn't the appointment of Weathers, regardless of her politics, be seen as a conflict of interest that institutions are told to avoid because in her normal role at SLU she writes the rules and policies she is using to adjudicate as a hearing officer?

In a court of law, maybe, and even then I think it's a very difficult matter on which to prevail.  It's certainly not a winning argument in this kangaroo court. I think the strategy has to be to attack the actual/suspected weird things that happened (e.g. interim suspensions, moved on and off and on and off campus, effectively identifying the players, timing issues, possible upheaval in the Title IX office due to maternity leave, no criminal charges, deviation from investigator's report (if applicable)).  They need to throw the kitchen sink at the "process" and then connect it to the impact on the ultimate decision.   

[Bobby Metzinger]

1 minute ago, moytoy12 said:

In a court of law, maybe, and even then I think it's a very difficult matter on which to prevail.  It's certainly not a winning argument in this kangaroo court. I think the strategy has to be to attack the actual/suspected weird things that happened (e.g. interim suspensions, moved on and off and on and off campus, effectively identifying the players, timing issues, possible upheaval in the Title IX office due to maternity leave, no criminal charges, deviation from investigator's report (if applicable)).  They need to throw the kitchen sink at the "process" and then connect it to the impact on the ultimate decision.   

Obviously no one asked for her to recuse herself from this session.

[brianstl]

1 minute ago, moytoy12 said:

In a court of law, maybe, and even then I think it's a very difficult matter on which to prevail.  It's certainly not a winning argument in this kangaroo court. I think the strategy has to be to attack the actual/suspected weird things that happened (e.g. interim suspensions, moved on and off and on and off campus, effectively identifying the players, timing issues, possible upheaval in the Title IX office due to maternity leave, no criminal charges, deviation from investigator's report (if applicable)).  They need to throw the kitchen sink at the "process" and then connect it to the impact on the ultimate decision.   

I was thinking more of Rosenblum using that issue as one of his many reasons for a TRO to stop SLU for enforcing their decision after the appeal process is over.  That is where I think we are headed.

[DeSmetBilliken]

Since reading the student conduct procedures sounds like something I don’t want to do, I’ll ask this to someone who has read them. Is the hearing officer required to be impartial? If so, argue that Weathers wasn’t. Present every instance of bias you can find on her (prior rulings, public comments, screenshots of the tweets from her recently deleted Twitter account, etc) and argue that the process was flawed.

[kshoe]

22 minutes ago, cheeseman said:

I am not sure the appeals board will want to get into that kind of thing - talk about a can of worms.  Now if you can show that she made a mistake or placed undue value on something or not on something then that is another matter entirely.  I still contend that if SLU has any brains what so ever then they can find away out this that still protects their original findings and shows some understanding to the players.

I agree with this. Make up whatever reason you want to lessen the punishment but if they revise the punishment down to 1 yr for all 4 players (make it more for whoever shared the video if you must) with time served for the 3 that haven't played you could end up with the entire team back next year with the current player taking a redshirt. It would still be painful for the program but not the death penalty it currently seems to be.

[moytoy12]

1 minute ago, DeSmetBilliken said:

Since reading the student conduct procedures sounds like something I don’t want to do, I’ll ask this to someone who has read them. Is the hearing officer required to be impartial? If so, argue that Weathers wasn’t. Present every instance of bias you can find on her (prior rulings, public comments, screenshots of the tweets from her recently deleted Twitter account, etc) and argue that the process was flawed.

It's not a matter of the process being flawed.  You have to show a "material deviation from the process...that would significantly impact the outcome."  For this appeal, you have to accept X as the process and SLU did Y.  You can't argue that X is wrong. 

[moytoy12]

2 minutes ago, kshoe said:

I agree with this. Make up whatever reason you want to lessen the punishment but if they revise the punishment down to 1 yr for all 4 players (make it more for whoever shared the video if you must) with time served for the 3 that haven't played you could end up with the entire team back next year with the current player taking a redshirt. It would still be painful for the program but not the death penalty it currently seems to be.

I agree that given the squishy nature of this process, there is certainly the ability to revise the punishment and couch it in acceptable terms under the appellate process.  I have zero confidence that will happen.  This is bureaucracy at its best and they'll be looking for form over substance. 

[Pistol]

18 minutes ago, DeSmetBilliken said:

Since reading the student conduct procedures sounds like something I don’t want to do, I’ll ask this to someone who has read them. Is the hearing officer required to be impartial? If so, argue that Weathers wasn’t. Present every instance of bias you can find on her (prior rulings, public comments, screenshots of the tweets from her recently deleted Twitter account, etc) and argue that the process was flawed.

I agree with this.

14 minutes ago, moytoy12 said:

It's not a matter of the process being flawed.  You have to show a "material deviation from the process...that would significantly impact the outcome."  For this appeal, you have to accept X as the process and SLU did Y.  You can't argue that X is wrong. 

It wouldn't qualify as material deviation, necessarily, but what about the other reason for appeal, new information that would've impacted the case? They could introduce her Twitter account and the fact she's been the subject of at least one case of possible racial bias (Christopher Winston) as "New or relevant information, not available at the time of the investigation or determination of responsibility, has arisen that would significantly impact the outcome of the case."

[Band Legend]

I think the best opportunity for some type of reversal is that the persistent accuser is remorseful about the harsh punishment and decides to flip some or all of her testimony.  Probably wishful thinking.

 

[moytoy12]

Just now, Pistol said:

I agree with this.

It wouldn't qualify as material deviation, necessarily, but what about the other reason for appeal, new information that would've impacted the case? They could introduce her Twitter account and the fact she's been the subject of at least one case of possible racial bias (Christopher Winston) as "New or relevant information, not available at the time of the investigation or determination of responsibility, has arisen that would significantly impact the outcome of the case."

Again, I don't think it's a winning argument for the appeal, but has merit in court. No way this panel essentially outs their colleague/boss as someone who is a bigot or discriminates. Finally, we're all assuming that Weathers was the one in charge of this investigation but none of us know that.  Hell, Weathers might not have been on the investigation and could be on the appeals panel for all we know.