STUDENTS ACCUSED OF SEXUAL ASSAULT ARE SUING COLLEGES
For 50 minutes, they appeared in
front of a panel of employees of the college in Grand Rapids, Michigan. In
a 10-minute opening statement, the male student defended himself against
charges he had sexually assaulted the female student. The female student offered
no opening statement.
A few questions from the panel
later, the hearing was done. Six days later, the male student was expelled. Ten
months later, he filed a federal lawsuit. Several months after that, Aquinas
settled the lawsuit. Those involved are barred from talking about the case by
the agreement.
In suing, the Aquinas student
joined a growing tide of male students, accused of sexually assaulting fellow
students, who have lodged federal lawsuits against their schools, alleging
discrimination and violations of their due process rights.
Despite the continued heat of the
#MeToo movement that has brought down celebrities, politicians, business
leaders and religious leaders, the male students are finding success in the
court system.
In 2011, then-President Barack
Obama's administration urged universities to take more action
on sexual assault complaints.
Since then, universities have
lost more decisions in these lawsuits than they have won, according to an
analysis of federal court filings. Most of the losses are judges deciding
against universities' motions to dismiss the cases.
"It's the end of the beginning," said Andrew Miltenberg, an
attorney with Nesenoff & Miltenberg who represents accused students,
including a trio suing Michigan State University. "We're seeing, for the
first time, in the last year or so, that courts are starting to
embrace the concept that there could be due process issues. Others are
not. We don't have a big jury case yet."
Several hundred cases have been
filed in the last eight years, with the pace picking up in recent years.
Now a case is filed every two weeks or so, experts said.
The
losses share a problem, said KC Johnson, a professor at Brooklyn College and
the co-author of "The Campus Rape Frenzy: The Attack on Due Process at
America’s Universities." Johnson has tracked the cases and provided the
Free Press with his database of cases and outcomes.
"One commonality is the lack
of cross-examination," he said. "Courts are saying each side should
have the opportunity to question each other."
Big universities
including the University of Southern California, Penn State University and
Ohio State have lost. Smaller schools, including Hofstra University,
Boston College and Claremont McKenna College have also been on the losing end
of decisions. Another group of schools, including Northwestern University,
Dartmouth College and Yale have settled lawsuits.
Universities, even when reaching
a settlement, aren't paying out large amounts of money to those accused
students who are suing them. They are often, instead, expunging findings,
giving clean transcripts or degrees, multiple lawyers said.
Many decisions are now being
appealed. At least one federal appeals circuit has already weighed in, with
others likely to do so in the coming months. Many believe a U.S.Supreme Court
case is the likely end point sometime in the next two to five years.
One of the people paying
attention to the court rulings is U.S. Education Secretary Betsy DeVos, who has proposed
new regulations for how colleges handle sexual assault. Among the regulations — live
hearings with cross-examinations.
The cases have often sent
the students back to the university with orders to redo the investigation under
procedures that correct due process flaws.
That's difficult
for sexual assault survivors, said Laura Dunn, a sexual assault survivor
and attorney.
"They have to go and sit
through it all again and relive the whole experience."
Miltenberg said he hasn't seen
any slowing of accusations.
"I still think there's a lot
of confusion out there on what needs to be done" by universities, he
said. And there was a need for courts to step in because "universities, on
their own, weren't going to get (to fair due process) on their own
In January 2016, an unnamed
female student filed a report with the Boulder Police Department that she
was sexually assaulted in July 2015 and that, in spring 2014,
Norris touched her genitals without her consent. That allegation was
shared with the school. Both the police and the school launched investigations.
Shortly after, a university
investigator emailed the female student: “No time limits on our side, so
if at any point you would like to speak with me about the incident, I am
available to meet or speak to you by phone," according to a federal lawsuit.
"The email further informed Jane Roe (the student) that her participation
in the process was optional and provided her with options for 'advocacy and
support.' "
Norris was notified a couple of
days later and given two days to find an adviser and set up a meeting with the
university investigator, according to the lawsuit. The lawsuit also claims he
was told that if he didn't respond, the university could continue the process
without him.
Throughout the process, the
lawsuit claims, the accuser was given leeway in deadlines and access to
information about the investigation, whereas Norris wasn't. He was allowed to
review the investigator's report, but only in the office and with a university
official sitting in. He couldn't make copies. Multiple witnesses supported his
version of events, the lawsuit states, but the witnesses were ignored. Norris
is represented by Miltenberg.
During the time of the
investigation, then-Vice President Joe Biden appeared on campus as
part of a week-long anti-sexual assault campaign. The lawsuit claims Biden's
appearance increased pressure on the university to find against male
students.
vice President Biden with University of
Colorado sophomore Emma Beach after speaking about sexual violence on campus as
part of the "It's On Us" campaign, April 8, 2016, at the University
of Colorado campus in Boulder, Colo. (Photo: Jeremy Papasso/Daily Camera via AP)
There was no hearing. The university's conduct
officer found the female student more credible and suspended Norris for 18
months, banning him from campus during that time. At the same time, a jury
acquitted Norris of all charges stemming from the complaint.
"CU Boulder’s investigation and
adjudication of Jane Roe’s allegations were tainted by gender bias resulting
from federal and local pressure to protect female victims of sexual violence,
and to reform CU Boulder’s policies to take a hard line against male students
accused of sexual misconduct," the lawsuit states. "As a result,
Plaintiff was deprived of a fair and impartial hearing with adequate due
process protections, as mandated by the United States Constitution."
A federal judge agreed there was enough
evidence to continue the case, defeating a motion to dismiss by the university.
The judge cited the growing case law around due process claims and said:
"The lack of a full hearing with cross-examination provides evidence
supporting a claim for a violation of his due process rights."
Growing number of
lawsuits
In 2011, the Obama administration issued what
became known as the "Dear Colleague" letter, demanding colleges up
their game when it came to sexual assault complaints. More sexual assault survivors
filed complaints with the federal government alleging their universities hadn't
handled their complaints properly. The federal government cracked down on
schools, including pre larry nassar scandal Michigan state, which the
government said had bad policies that contributed to a sexually hostile
environment.
Schools also switched to a single-investigator
method and trauma-informed processes. The single-investigator model works by
having a single university employee or outside expert interview the
accuser, the accused and any witnesses separately and then write up a
report. Both sides often have a chance to review the report, but can't ask each
other or witnesses questions.
But as the model of investigation changed,
complaints started to rise that universities had swung the pendulum too far and
were going into the process thinking the male students were guilty even before
gathering the evidence.
Since the "Dear
Colleague" letter, there have been more than 330 federal cases
in which some action has been taken. As of April 11, universities have lost
140 decisions, mostly motions to dismiss the lawsuit. They've won 126 times.
They have ended cases with confidential settlements 65 times.
Those numbers don't count the cases filed and
still working through the system. The estimate is one federal case is filed
every two weeks. That also doesn't count cases filed in state court systems.
"A
lot of these university policies are hard to defend," Johnson said.
"Universities ... are very slow to respond to adverse rulings and make
changes. That just leads to more cases
Perhaps the most cited
recent ruling in court cases is a lawsuit stemming from the University of
Michigan and an appeals court ruling.
The case the appeals court was
considering centers on a sexual encounter at a fraternity party. The male
student was eventually thrown out of school.
The student then sued U-M,
alleging his due process rights weren't granted. A lower court ruled against
him, but he appealed.
His argument was that the
university already gave students accused of every other type of misconduct the
right to a hearing and cross-examination.
In its ruling, the court of
appeals bought that argument.
"If a public university has
to choose between competing narratives to resolve a case, the university must
give the accused student or his agent an opportunity to cross-examine the
accuser," the court wrote.
"Due process requires
cross-examination in circumstances like these because it is 'the greatest legal
engine ever invented' for uncovering the truth."
The impact of the cases
As a sexual assault
survivor-turned lawyer, Laura Dunn has seen the legal system from both
perspectives. She currently represents other sexual assault survivors,
including in lawsuits they file against universities.
Those cases can be tough to win
because civil rights violations have to show deliberate indifference. Educating
judges on those legal standards and how universities didn't meet them can be a
challenge.
On the other hand, she
says: "The staples of due process are very well understood."
But maybe not so by universities,
said Justin Dillon, a former federal prosecutor whose Washington, D.C.,
firm KaiserDillon represents accused students.
It took a while for cases to
develop and work through the legal system, sort of a lagging indicator that
there were problems with how universities were handling the accusations.
Students getting expelled for
sexual assault accusations felt branded and that they would suffer reputation
harm that would last well past college. So when they saw flaws, they began to
sue and courts began to question procedures.
That's led to some good, Dunn
said, noting she's not a fan of the single-investigator model.
Universities are definitely aware of the court trend,
Miltenberg said. He is finding he can draft a complaint listing a number of
issues, present it to the university before filing and have universities
tell them to slow down the process and work with them to get a fair hearing.
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