As August turns into September students from across the nation will return to Miami University to begin a new academic year. One of the changes awaiting students when they return to campus are some changes in the Student Code of Conduct.
The Office of Community Standards (formerly known as OESCR) has released the Code of Conduct that will govern student behavior in the 2018-2019 academic year. In the 19-19 version is a change to the Code's definition of "consent" during sexual acts.
The Cincinnati Enquirer recently published a well-sourced piece on campus sexual assaults (often referred to as Title IX cases) titled "The Sex Talk: The conversation that is not happening about campus sexual assault." As a Title IX Lawyer, I appreciate the attention that the authors of the Enquirer article and its participants brought to the many issues surrounding Title IX cases. One area that could have used more attention in the Enquirer piece, however, is how to handle cases where both parties are equally intoxicated, and where neither party alleges that the other party used force, threat of force, or purposeful incapacitation (i.e. attempt to drug/over-intoxicate the other party). Some might call this the *consensual* "drunken hookup." Solving the puzzle regarding the *consensual* drunken hookup is at the heart of creating a fair and constitutional Title IX process.
The college football world was rocked yesterday with the report that Ohio State Football Coach Urban Meyer has been put on paid leave pending an investigation into alleged domestic violence by one of his (now former) assistant coaches. Mr. Meyer is not alleged to have committed domestic violence, so you may be wondering how this story may implicate him. The answer lies in the school's Title IX Policy, and in particular the Title IX language in Mr. Meyer's new contract that he signed in April 2018.
Miami University Code of Student Conduct ("the Code") prohibits the "use, offer for sale, sale, distribution, possession, or manufacture of any controlled substance or drug except as expressly permitted by law is prohibited. The use, offer for sale, sale, distribution, possession, or manufacture of chemicals, products, or materials for the purpose of use as an intoxicant except as expressly permitted by law is also prohibited." (Code 106(A)).
Typically, this code section is cited when the University receives a complaint that a student possesed illicit drugs or was involved in the sale of illegal drugs (e.g. marijuana, illegal narcotics, drug trafficking). While possessing a tablet or pill prescribed to another person can lead to criminal charges, possessing your own prescribed medicine is not illegal in Ohio. But what about under the Code?
The need for change and accountability in the nursing home industry
$2.1m partial settlement reached in nursing home transportation case
A few weeks ago, a partial settlement was reached for a family who lost a mother and wife because of an understaffed and undertrained nursing home. I handled the case with attorney Craig Schlapprizzi who is a close friend of mine and former college teammate. After we were retained, we learned through an investigation that the nursing home asked a person who had no training to transport a patient from the home to a physician's office. The home was understaffed. The person they instructed to transport the patient was trained as a maintenance person and had no training in transporting patients. The law required the driver of this transport van to have a valid commercial driver's license and he did not have one. Our client was seriously injured when she fell from her wheelchair in the transport van because she had not been properly secured. The case was partially settled for $2.1 million. As a lawyer, I always hope that my advocacy for a current client helps make things safer for others. My hope is that a settlement of this size will change the behavior of the at-fault nursing home as well as many others who become aware of it. Recently released statistics and another similar call I received last week, however, gives me concern that are more injuries and deaths at nursing homes related to poor care than we are aware.
It turns out, quite a bit! According to the authors of Reptile: The 2009 Manual of the Plaintiff's Revolution1, the way humans have evolved means that as listeners we respond to certain primal signals that shape our decisions. The authors describe how our subconscious controls more of our thought process than we realize. When our "reptile brain" (as the authors describe it) feels threatened, it makes decisions that prioritize protecting itself, and protecting its ability to pass on its genetic code to its progeny.
But you thought you were reading a law blog, right? So why does this matter if you are an injured person seeking to recover for your damages? The answer is that as trial lawyers our primary job is to convince juries to award you the damages that you deserve in light of your injuries and the defendant's conduct. The techniques of Reptile help us do that by helping us key in on what motivates jurors to action.
A few weeks ago, a divided United States Supreme Court in Carpenter v. United States, 2018 WL 3073916, *9 held Fourth Amendment protections extend to a cell phone user's cell tower location data held by the user's wireless company. Why? A cell phone user has a legitimate expectation of privacy concerning their physical movements according to the Court.
In Carpenter, the government obtained Timothy Carpenter's cell-site location information (CSLI) from his wireless carrier without a search warrant. Carpenter was convicted of multiple robberies based upon seven days of his CSLI obtained by prosecutors from Carpenter's wireless carrier. Carpenter appealed his convictions, arguing the government's warrantless collection of his CSLI was unconstitutional. The Court agreed, stating the collection was a search within the meaning of the Fourth Amendment and therefore, the government was required to obtain a warrant supported by probable cause.
On July 30, 2016, Plaintiff Kirk Allyson, a 49-year-old male entered Defendant Dunham's sporting goods store In Alexandria, Kentucky, to purchase some dumbbell weights for his son who was a member of the Pendleton County football team. Dunham's Athleisure Corporation owned and operated the store located at 6805 Alexandria Pike in Alexandria, Kentucky.
Not being able to find the weights he was looking for, Plaintiff Allyson asked assistant manager Mike Welch to show him where the weights were located. Mr. Welch obliged and took the plaintiff to the exercise area. When the plaintiff asked how the weights were priced, Mr. Welch immediately directed the plaintiff's attention to some dumbbells located on a top shelf. As the dumbbells on the top shelf were above eye level, Kirk stepped back to get a better view, and as he did, he fell over a barbell rack which had been placed in the middle of the floor close to the shelving. The plaintiff did not see the barbell rack prior to falling over it as Mr. Welch directed his attention towards the dumbbells on the adjacent shelves. As a result of the fall, the plaintiff suffered injuries to his right knee, right arm, and a full thickness tear to his right rotator cuff which required surgery.
Does character matter in criminal and university discipline cases? Yes! In a criminal trial or at a university hearing evidence of your good character can help you, or your persistent bad character can haunt you. Let's talk about how.
In a criminal case the "Rules of Evidence" (i.e. the rules that govern what evidence is permitted to be considered in trial) allow for the introduction of evidence of the defendant's "pertinent trait of character."1 For example, if you are on trial and someone you know well has the opinion that you are an honest person, that person can testify and say so. Similarly, if someone knows your reputation in the community to be that of an honest person, the witness can testify to your reputation as well. Note that the opposite is also true, especially after you have "opened the door" by discussing your good character: the prosecution could bring their own witnesses to say that they believe that you are a dishonest person or that you have a reputation for being dishonest.
In recent years, Title IX-an act designed to prohibit discrimination based on sex-has, ironically, been used to facilitate sex-based discrimination on college campuses. "Title IX" refers to Title IX of the Education Amendments of 1972 which states:
"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."
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