By: Matthew Blake
More than six years after a UCLA chemistry lab student repeatedly stabbed his classmate’s throat with a kitchen knife, the state Supreme Court has agreed to hear a lawsuit regarding whether the university did what it could to prevent the almost fatal attack.
The high court unanimously granted on Wednesday plaintiff Katherine Rosen’s petition to review a published and split 2nd District Court of Appeal decision from October that found colleges and universities have no obligation to protect their students from third party criminal acts, even if another student was accused of the crime. The Regents of the University of California v. Superior Court, S230568.
The case will mark the first time since the 2007 Virginia Tech massacre that the state high court addresses public higher education’s student safety duties.
Lawyers sympathetic to Rosen’s position, including James V. Kosnett a plaintiff lawyer in education litigation at Kosnett Law Firm, argued that after the Virginia Tech shooting, campuses, including UCLA, assured students improved campus safety and should be held liable for not delivering on that promise.
Robert R. DeKoven, a California Western Law Professor, said a “lot of schools are hanging in limbo” about their duty to protect students.
DeKoven, though, noted it may be unreasonable to expect universities to avert each campus attack, and suggested a legislative fix to address higher education’s ambiguous safety duties.
An honors student who now attends medical school in New York, Rosen was attacked in 2009 by classmate Damon Thompson, who university psychologists treated at the time for paranoia and hallucinations. Rosen sued in 2010, claiming UCLA personnel knew enough about Thompson to reasonably foresee his violent outburst.
Los Angeles County Superior Court Judge Gerald Rosenberg ruled in 2014 that a jury ought to decide whether UCLA’s psychological treatment of Thompson, who a criminal court found not guilty by reason of insanity, meant the university knew enough to keep Thompson away from other students.
But appellate Justice Laurie D. Zelon’s opinion noted Thompson consistently told school psychologists he would not harm anyone. Zelon’s ruling also focused on Ochoa v. California State University, a 1999 state appellate decision about school liability for a soccer injury, that found, unlike high school students, college students voluntarily partake in activities and must bear the risk of their participation.
In a dissent amply cited by plaintiff’s petition, Justice Dennis M. Perluss quoted from UCLA’s 2008 brochure, written in the wake of the Virginia Tech shooting, that read, “Welcome to one of the most secure campuses in the country.”
Perluss concluded such assertions were not merely aspirational but created a special relationship between school and student. Messages left with UCLA outside counsel Timothy T. Coates of Greines, Martin, Stein & Richland LLP were not returned.
Rosen lawyer Brian Panish, an attorney at Panish, Shea & Boyle LLP, said on Wednesday the issue of campus safety is more important than ever, adding, “UCLA says it is a safe school, but they are hiding behind this technical claim of immunity.”
Rosen is also represented on appeal by solo practitioner Alan Charles Dell’Ario.
In the summer of 2015 James Kosnett successfully obtained two writs of mandate overturning a university student’s dismissal and another university student’s lengthy suspension. Both cases involved alleged cheating and academic dishonesty.
The court granted Mr. Kosnett the relief he requested because the University’s process was deemed “fundamentally unfair”.
James Kosnett negotiated a physician’s departure from a hospital & medical group which was unfairly accusing the physician of professional deficiencies. The deal protected the surgeon’s reputation and prevented any possibility of an MBC (Medical Board of California) investigation or disciplinary action.
By Kibkabe Araya
Daily Journal Staff Writer
This week began with Columbia University Graduate School of Journalism’s report on the now-retracted Rolling Stone magazine article from last year based on a shaky account of an alleged gang rape at a frat house. That followed a video leak last month depicting a group of University of Oklahoma fraternity brothers reveling in a racist chant on a bus, an act which led to the organization’s suspension and the expulsion of two students.
As the nucleus of college life on many campuses, fraternities and sororities have long dealt with legal issues ranging from hazing to underage drinking. But the rise of social media and digital access has widened their exposure, leaving lawyers to try to dim the spotlight until the popular groups are given their due process.
Greek organizations deal with a host of potential legal issues: drug use, underage drinking, and allegations of rape and sexual assault. If someone gets hurt falling off a frat house balcony, it can turn into negligence, premises liability, personal injury, and in rare cases, wrongful death. Lately, Greek organizations have also been scrutinized for ethical issues like racial discrimination and plagiarism.
These legal issues are made all the more serious thanks to digital dissemination. Last month, a disoriented 19-year-old soccer star was fatally struck on a freeway in Los Angeles after leaving Tau Kappa Epsilon fraternity party at the University of Southern California. The story caught on quickly via Facebook and Twitter.
“Like everything else, the Internet and social media has had a huge impact on us working with college students, fraternities and sororities,” said Timothy M. Burke of Manley Burke LPA, a firm known for its nationwide Fraternal Law Partners practice that has worked with Greek organizations in California. “National fraternities and sororities have, if anything, upped their involvement in programming for their members designed to ensure they recognize hazing is against the law. National organizations are playing a role in those areas as attention focuses more directly on all of those issues.”
Once the situation has launched a media frenzy, Greek organizations are left to weigh their legal options. Though fraternities and sororities lawyer up to battle these legal issues, most cases don’t go to trial, or even get to the courthouse. They’re handled through the school’s administrative process, which include arguments in front of boards of peers and administrators.
For almost 40 years, James V. Kosnett has practiced administrative law, and has defended college and university students in various accusations, including members in Greek organizations. Social media has rocked his educational law practice, he said, as students are increasingly using various digital lines of communication – like text messages – as evidence at hearings. Kosnett represented a USC fraternity student accused of date rape. A mutual female friend of the accused and the accuser, he said, used a text message exchange with the accuser as evidence in the hearing to clear his client’s name.
“Because students use social media much more often, sometimes there is incriminating evidence online that the university may use against the student,” said Kosnett, who runs the Kosnett Law Firm in Los Angeles with his newly minted lawyer son, Louis. “A posting on Facebook, for example, concerning an incident at a fraternity, or concerning something that happened at the university or at a bar off-campus last weekend, for example, can be seen not only by the intended viewers, but by the college administrators who will download it and print it out and use it to investigate and prosecute for any violation of the code of student conduct.”
When he sits down with his clients, Kosnett said it is common procedure now to ask the students what they posted online relevant to the case and name associates who may have also engaged in social media. He said he then cautions them to stay away from posting anything online that could hurt the case.
The media has placed more attention on fraternities and sororities, Burke said. Getting into the practice after representing Cincinnati-based sorority Chi Omega, Burke’s firm manages an anti-hazing hotline, which he said was an idea from a fraternity. “[The media] certainly is why some things are being publicly discussed, and in the past, we never heard about them,” he said.
Greek life has even gained more attention on Capitol Hill. The Fraternity and Sorority Political Action Committee, or FratPAC, have urged Congress to make some investigatory practices dealing with hazing and sexual assault against Greek organizations stricter because of the heightened scrutiny and potential hiccups in accounts like the one depicted in the Rolling Stone article.
Based in San Francisco, the largest national fraternity and sorority defense belongs to insurance and liability firm Archer Norris PLC, which has a Greek organization litigation practice group with attorney Michael C. Osborne leading the team of 11 attorneys. Citing active litigation, he declined to comment for this story.
James B. Ewbank II of Cokinos, Bosien & Young PC in Texas also litigates many of the Greek organization defense cases around the country, including in California. Ewbank said some colleges and universities are skipping due process or stretching out cases too long to handle the surge in sexual assault allegations surrounding fraternities.
“The pendulum has swung too far where universities are taking action in almost nonexistent allegations, but there are still legitimate cases of sexual assault that need to be investigated,” he said.
Labor and employment attorney Angela J. Reddock-Wright of the Reddock Law Group said even though more attention has been given to these legal issues, doesn’t mean that they’ve been resolved any more efficiently.
“What we are experiencing today is the ‘ostrich syndrome’ – many organizations are sticking their heads in the sand and pretending like a problem does not exist when it really does,” said Reddock-Wright, who has recently started a new mediation practice with a niche in hazing, bullying and Title IX work. “Now we know that we can no longer ignore these issues and bury our heads in the sand. We have to do something about it.”
Even with increased attention to the legal side of Greek life, Greek organization transaction and litigation practices are still very rare. Kosnett said he’s open to mentoring law students and letting attorneys shadow him in his Greek organization defense work.
“It is a niche area, but it’s a rewarding one,” he said.
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Clearing an undergraduate man who was falsely accused of sexual misconduct in connection with a fraternity event. The allegations also included use of alcohol and drugs. The matter was investigated by a Title IX Coordinator at USC, who interviewed the accused, in Mr. Kosnett’s presence. Mr. Kosnett’s legal strategy and advice was instrumental in obtaining a favorable report, resulting in no discipline. One of the keys was getting Attorney Kosnett involved at the commencement of the investigation. This was wisely done by the accused, whose fraternity had previously been successfully represented by Mr. Kosnett in an appeal, overturning a negative decision by SJACS (Student Judicial Affairs and Community Standards, the disciplinary body for most student misconduct cases.)
The Kosnett Law Firm recently represented a UCLA student at both his university hearing and in Criminal Court, and Attorney James Kosnett was successful in both. The student was involved in an alleged fight at a UCLA team game, and Mr. Kosnett first tried the case at a UCLA disciplinary hearing, and obtained dismissal of all University charges (the student was facing suspension!!).
Then, Mr. Kosnett proceeded to represent the student in Criminal Court, where he was charged with an assault and battery stemming from the same case. Kosnett obtained a dismissal of the misdemeanor charges on the day the jury trial was scheduled to begin. Our client got off scot-free from both the University hearing and Criminal charges. We couldn’t be happier for our client, and we are proud we could help him.
James Kosnett recently won a major administrative law case against the State of California Franchise Tax Board. The FTB contended Mr. Kosnett’s client, a provider of video technicians to producers of major events like the Academy Awards and the Super Bowl, actually employed these workers, and therefore owed the state taxes and penalties in excess or $200,000. Mr. Kosnett successfully proved that they were independent contractors, not employees of his client, who therefore owed nothing to the state.
In other actions, Mr. Kosnett successfully defended an LAUSD student against expulsion, and successfully advocated for a UCLA student who had initially been denied his right to a hearing, because the Assistant Dean who initially interviewed the student (falsely) claimed the student acknowledged violating the Code of Student Conduct.
Mr. Kosnett also overturned a decision of the EDD, which denied his client unemployment benefits, and demanded repayment of what the EDD claimed was an overpayment; Mr. Kosnett represented the worker before an administrative law judge of the California Unemployment Insurance Appeals Board, or CUIAB, defeated the demand for return of overpayment, and restored benefits.
Kosnett Law Firm is a Los Angeles-based law firm helping students, professionals, and the public in matters of education law, professional licensing, and attorney-client fee disputes throughout Central and Southern California. See below for case results highlighting some of the firm’s accomplishments or for news stories regarding the firm and its lawyers in their various areas of practice. For a free consultation regarding a particular legal matter, contact the Kosnett Law Firm today.
James Kosnett recently represented a prominent Real Estate agent who could not obtain a Real Estate license due to a prior conviction. Not only was Mr. Kosnett able to secure her license without having to go to hearing, but he was able to avoid having his client issued a probationary license, which is very unusual and favorable to the licensee. Mr. Kosnett’s expertise was invaluable and resulted in an efficient outcome for his client.
James Kosnett has been hard at work securing a variety of victories in Education Law. This summer, Mr. Kosnett has filed appeals for various students at different colleges and universities, such as UCLA, USC, University of Phoenix, John F. Kennedy University, Cal State Humboldt, San Jose State University, and Claremont Colleges. He has also filed a number of government tort claims.
Mr. Kosnett successfully secured the readmission of a student at San Jose State, who is now on her way to completing a rare double major.
James Kosnett just obtained a Writ of Mandate against LAUSD, establishing a teacher’s right to pick her own nominee to a panel of judges, who will decide whether or not she should be dismissed.
James Victor Kosnett is an administrative law attorney and an LRIS panel member. Hailing from Northern New Jersey, James came to Los Angeles by way of undergraduate studies at Yale University and then law school at UCLA, where he fell in love with Los Angeles and its wonders: the diversity, the beach, the mountains, the weather! Los Angeles was a place where he could do well and do good works.
UCLA Law School, through its strong clinical programs, allowed James the opportunity to work with the Research and Defense Fund in the State of West Virginia, where he provided legal representation to farmers and miners. One of James’ cases was the famous Arizona Love case, which he accepted after receiving a letter from a woman in prison who had mistakenly entered a guilty plea for murder. James obtained her release. James continues to help others in Southern California.
While he initially came to administrative law practice through work in tax and securities law, he stayed because he truly enjoys the practice, finding administrative law to be an area that allows for crafting creative solutions to disparate problems. James’ strong focus is professional licensing and education, and through his efforts, students have been able to remain in school, and professionals have been able to keep their jobs. Some of these matters were referred by the BHBA LRIS.
One involved a nurse who was reformed from a former drug problem. When the hospital for which she worked found discrepancies in medical dispensing, her job and her license were at risk. After a three-day trial, it was established that the discrepancies were due to negligence in the record-keeping process, not to divergence and use. James saved the nurse’s license. Another instance involved a high school student who took a paintball gun to school. Because of the infraction of taking a weapon to school, the student would have been expelled from high school and his college admission would have accordingly been delayed, if not rescinded. Negotiating an alternative resolution that was meaningful but kept the student from leaving school, James had the expulsion reversed. The student learned from his mistake, yet avoided being derailed, possibly for good. This case was referred to James by the BHBA LRIS. We at LRIS thank James for his efforts and congratulate him on these successes!
I am an alumni adviser for a fraternity at USC. The chapter was involved in a disciplinary action with the university. After receiving unusually harsh and unfair sanctions from a student/faculty review committee, our chapter sought counsel from James Kosnett. He attended a hearing with USC administrators, and prepared a compelling written appeal.