Miltenberg: Law & Crime Trial Network Title IX Case Interview


Law & Crime Trial Network Title IX Case Interview with Andrew Miltenberg.
This interview originally aired on the Law and Crime Network on July 10, 2019

Bob Bianchi: Well, welcome back to the Law & Crime Network. My name is Bob Bianchi. I’ll be with you to 3:00 today. As we always do, we are covering things gavel to gavel, and we’ve got a lot of sidebars today with some interesting guests and an interesting story. I have a special presentation of an individual that’s been making a lot of news out in the legal community, Andrew Miltenberg. Andrew, welcome to the show.

Andrew Miltenberg: Thank you very much for having me.

Bob: Yeah, my pleasure. And Andrew has a very unique and specific practice here in New York. He’s not only a very, very well-accomplished lawyer, but he’s received national recognition for what we call Title IX cases. Those are cases that involve students who are accused in some instances of sexual misconduct. Now I can tell you as a former prosecutor that had at least five colleges and universities that I was in control of on the law enforcement end that this is a rampant epidemic, and we need to do a lot to be able to make sure that victims, especially women, in most cases, are protected from those abuses.

But there’s another side to that coin, and that is whether or not those who are accused in instances falsely accused, because that does happen, whether they are receiving a fair shake if you will from the university. I could tell you personally as a defense lawyer now I recently had, Andrew, one or two cases that I was dealing with that had criminal law components to it, but also a school situation, and I was kind of put off by the fact that the proceedings that I was being forced to go into really had no information, no data. He had no rights, he had no ability to be able to cross-examine witnesses, and I felt, you know, with all that’s on the line there that that was unfair. So tell us, how did you start getting into this area, and tell our audience about the unique thing that you did. Because if I understand this correct, you may be the first lawyer that ever got class action status for individuals who were falsely accused.

Andrew: Well, I got into this back in 2013. As you know, the law changed in 2011. The Department of Education sent out what’s called a “Dear Colleague Letter,” which is guidance on how they were going to handle sexual assault on campus. And that had the impact during the Obama years of forcing schools to be hyper-aggressive about how they handled sexual assault cases on campus. And within that, the #MeToo movement was born, essentially. And on campuses all over the country, what started happening is young men, without any rights, were being accused and suspended or expelled.

Bob: Right, and if I understand, because I have a number of articles, you were on the cutting edge of this and had been for many years, and in fact, you haven’t necessarily…sometimes you’ve been attacked for some of the things that you’ve done, but you’ve exposed here some of the flaws where these individuals aren’t getting due process and then got class action status. Talk to us about that.

Andrew: So, especially at Michigan State, which is where we’re trying to get class action status right now, we’ve had three cases in the last year. One on behalf of an NFL player who was expelled when he was playing in the NFL, and that impacted his career. That one recently settled, fortunately. The other two have not. And Michigan State, in what we think was a direct correlation to the Larry Nassar issue, turned around and said, “We’re gonna show everybody in this country how aggressive we are on dealing with young men who commit sexual misconduct.” And what came from that are no hearings, no ability to go confront a witness, no ability to confront your accuser, and on and on.

Bob: Right, and from what I understand from some of these articles, you may have referred to as the kangaroo courts, there have been instances in which the victim wasn’t even interviewed, and didn’t even testify, gave absolutely no information, and the panel that suspended the students never had an opportunity to evaluate the credibility of the allegation. Is this possible?

Andrew: That’s correct. The school doesn’t have subpoena power. So all of the things as a prosecutor, as a former prosecutor and as a defense lawyer that you would rely on to make sure you had all of the evidence available and that you are prosecuting the right person and that your client, as a defense lawyer, had a full opportunity to be heard and have everything laid before the court, none of that exists at the university level. And when we first started doing this, the general thought was, “So, what’s the big deal? A student will go to another college once he’s suspended or expelled.” We’ve learned that’s not the case. Having this sexual assault or misconduct on your transcript forestalls any other career essentially other than going to work at a low-paying job.

Bob: So if you, and I noticed that from some of the writings, which I was very impressed with, is that you…I know there’s other voices going on in our head and it makes it a little difficult, but we’ll get that straightened out I’m sure in the control room. What impressed me about this is that you’re not just, like, seeking monetary damage. You’re taking these cases on with the potential of not even getting any compensation for it, but moreover, you’re also looking for reputational rehabilitation.

Andrew: Well, you know, reputation is impossible to get back once it’s damaged, especially in the internet age, where the internet obviously is everywhere and things live on forever there. So the fact that you can google someone and find out that they were suspended or expelled from a university has serious ramifications for their future. So instead of looking for monetary damages, which sometimes we do in certain cases, here, we’re looking to expunge records and reverse the findings and sanction, so these young men, and in some cases young women, can go on with their lives and the career path they’d like to seek.

Bob: Andrew, do you have any kind of statistics that are well-documented, authoritative sources that tell us how many false allegations occur in these instances?

Andrew: No, there’s are a lot of numbers floating around, and a lot of people who purport to believe that there are less than 1% of rape allegations or sexual assault allegations are false. There are people who believe it’s more like one in five. There are people who believe that as much as 30% of sexual assault allegations are unfounded. You know, the falsely accused part is the difficult part. The easy part is the due process part. And that’s the part that I think is incumbent upon universities, just like it’s incumbent upon our court system, to make sure that defendants and respondents in these cases get.

Bob: Now, have you received class action status right now?

Andrew: We have not. We’re…

Bob: But you have the possibility of doing it, is that right?

Andrew: Yes. We have two plaintiffs, and we have well over 200, looking back 3 years at Michigan State…3, well over 200 potential class members.

Bob: Now if people were to come to you, let’s say, if I understand if I read these articles, you may be wanting to reach back to 2011. I presume that must be when the Obama “Dear Colleague” letter came out?

Andrew: Correct.

Bob: And you’re seeking any kind of plaintiff or anybody who was falsely accused or thought that they were falsely accused, and you’re willing to speak to them and have them come talk to you about what their rights are?

Andrew: Anyone who was tried in a Title IX hearing, a sexual assault hearing, at the Michigan State University, who was found responsible, and didn’t have the right to a hearing, right to cross-examine, right to confront witnesses, anyone, whether they were falsely accused or not, we’re looking to work with.

Bob: Does that just pertain to Michigan State, or…

Andrew: Well, right now it’s just Michigan State, and Michigan State I think is a particularly interesting phenomena, because of what happened with Larry Nassar and all of these young women years ago, and I think they reversed course in a very significant way, one that has had a terrible impact on a lot of young men.

Bob: Don’t we find that in the law a lot of times, and that was like what happened in the Ray Rice case, a terrible case, okay, we get it. But it revamped all the laws that we had that were there for the right reasons, and because of a singular case and the political correctness of it, again, once again, ties hands of prosecutors and judges on a case-by-case basis from exercising their discretion, and what I used to use this expression is, as prosecutors, I don’t like to be in a position where I’m hitting a fly with a sledgehammer. And I think that that’s kind of what went on with this “Dear Colleague” letter.

Andrew: I think that’s well-said. That’s well-said. The “Dear Colleague” letter has turned things around to such an extent that there are a whole new class of victims essentially, and these are young men who, all over the country, and we’ve done cases everywhere from California to Alaska to Texas to Florida to Maine, New York, New Jersey, and everywhere in between. Universities are dealing summarily with these charges, and you are considered guilty, or responsible, and you have to disprove that notion.

Bob: Now, I’ve read that you’ve been in over 30 states handling these kind of cases, so you handle them on an individual ad hoc basis, is that right?

Andrew: Correct.

Bob: Yeah, so what is a place where you saw best practices, the way it was done correctly, if at all?

Andrew: It’s hard to say. Some schools have, as we’ve had cases there, have made some corrections along the way. One that comes to mind, quite frankly, is Yale University. Starting about four or five years ago, we had a lot of work there, and each time a new case came up, I found that they had tweaked their hearing process to improve it a little. And that’s one of the few schools. I can say NYU I think that does a very fair job, and we do a lot of work there. But most schools, the position is if you’re accused, the allegations are correct because no one would lie about sexual assault allegations, and the low evidentiary standard, what we call the preponderance of the evidence, combined with the fact that you are considered responsible at the outset, makes it virtually impossible for a young man to prove his innocence.

Bob: Yeah, so it upends our notions of fairness, and listen, we know that there’s a lot of sexual abuse on campuses, and it needs to be eradicated. But like I used to say as the prosecutor when we’re talking about police practices, you can have effective and aggressive police practices, but you can also do them in a constitutional way. It just takes vision and a willingness to do it. Andrew Miltenberg, thank you very much. If anybody needs to get in touch with you, how do they find you?

Andrew: I’m in Manhattan, my office, 212-736-4500, and I really feel very passionate about these cases, as you can tell.

Bob: Well, I think it’s a great work that you’re doing, because balance is always important in everything to make sure that due process is served for both sides. 

Andrew: Thank you very, very much.

Bob: My pleasure. Guys, you don’t get anything like that on other than the on the Law & Crime Network. Andrew’s very impressive. I’ve done a lot of research. If you guys have any questions or, certainly can give him a call, he just gave you that contact information. We got a lot, a lot on the plate here at the Law & Crime Network, so let’s do a little business, and we’ll be right back.

If you believe your due process rights have been violated, like in the Michigan State case, let’s talk. 

Our attorneys are Title IX defense specialists and we have helped hundreds of accused students across the country who have been treated unfairly by their schools. We are parents too. Call us at 212-736-4500 or contact us as soon as a complaint is filed and we will be there aggressively protecting your rights, ensuring a fundamentally fair process, or establishing the deficiencies that will lead a court to reverse the school’s adverse findings. There is no fee for a private consultation.