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New Scrutiny for Sex Assault Cases

September 6, 2011

As the U.S. Education Department is aggressively reinforcing colleges’ legal obligations to address allegations of sexual assault -- and making examples of those that don't -- a federal jury on Friday found a university negligent for how it treated someone accused by a fellow student of rape.

The verdict will likely be mulled over at colleges across the country, where judicial hearings for alleged sexual assaults are the norm – and where confusion and a lack of guidance over how such hearings should transpire often result in the mishandling of cases, experts say. However, these discussions tend to focus on the rights of the accuser, rather than the alleged perpetrator.

A former student known in court documents as John Doe sued the University of the South for $3 million in damages – though in closing arguments, his lawyers pushed for $5 million – resulting from what the student termed an unfair hearing that ultimately led to his withdrawal from the university. A female student accused Doe of raping her in his dorm room in August 2008.

Doe alleged negligence and breach of contract, saying Sewanee did not follow its own published procedures regulating hearings, thereby violating the “good faith and fair dealing” agreement the university entered into when it accepted Doe’s tuition dollars.

In addition to the alleged breaches of policy, the case was complicated by the medical history of the woman who accused Doe -- background information that the university panel reportedly disregarded. During the hearing, the woman told the panel she took two medications for narcolepsy and one as a "mood stabilizer." In pre-hearing written statements the woman said she drank more that night than she ever had, though in other statements she said that while she consumed three mixed drinks early in the evening, she'd had nothing to drink in the four hours prior to seeing Doe, and she could consume alcohol while taking her medications.

The three faculty members on the hearing panel said they thought Doe was telling the truth when he said he believed the sex was consensual, the complaint says, “but that he failed to ‘understand the situation’ because he had not had enough experience with alcohol and did not recognize that [she] was incapacitated. They also said that Doe had ‘made a mistake.’ ” The panel told Doe he had two options: accept a one-semester suspension and return to the university with the assault on his record, or withdraw for at least two semesters and then reapply to Sewanee; if he were accepted, his record would be expunged. Doe opted for the second option and did not re-enroll.

On Friday, a jury of seven women and two men in the U.S. District Court for the Eastern District of Tennessee found the university negligent and awarded the student $26,500; that’s the compensation Sewanee will pay Doe to refund the tuition for the portion of the year for which he had paid but had not completed.

“Although we were disappointed in the amount of damages awarded, the verdict confirms what we have been saying all along,” Doe’s lawyer, Charles B. Wayne, said in an interview Friday, “that the university’s disciplinary process failed to satisfy the standard of care.” (That standard refers to how a reasonable person would handle the situation.)

In a statement sent to Inside Higher Ed on Friday, Sewanee said, “The university strongly believes that the former student received a fair hearing under our disciplinary process. It is significant that John Doe essentially was awarded only a refund of his tuition, and that the jury declined to award damages for any injury to his reputation, emotional injury, or loss of earning capacity.”

The suit alleged that the university violated a number of its sexual misconduct policies and procedures, which stipulate that it should: provide timely notice of the charges, conduct an appropriate and thorough investigation in which all possible witnesses are interviewed, cut off proceedings when there’s insufficient evidence to support the charges, allow the student to bring a lawyer to the hearing, show the student the statement of the accuser, and bar the accused from the trial only when the accuser is present.

Further details about the verdict, such as the counts on which the jury found the university negligent, are not yet available. The lawsuit alleges five different counts of negligence.

While this is just one case and one jury and won’t have significant effect on precedent, it does illustrate the complicated position in which universities find themselves these days, said Ada Meloy, general counsel for the American Council on Education.

“The recent attention to sexual assault or attempted sexual assault on campuses brought about by the ‘dear colleague’ letter issued in April could cause some institutions to perhaps go overboard in carrying out their processes in these cases,” Meloy said, referring to the document the Education Department distributed to colleges to clarify their obligations under Title IX of the Education Amendments of 1972, which, among other things, requires colleges receiving federal funds to publish grievance procedures to address complaints of sexual assault in a “prompt and equitable” manner that ensures due process for all students involved. “People involved at institutions do need to keep in mind the effect that their proceedings have on both the accuser and the accused.”

Meloy said there haven’t been any recent rulings similar to this one; however, such disputes are not unheard of, especially at private colleges.

The verdict illustrates the importance of colleges adhering to their own rules, said Daniel Swinton, president of the Association for Student Conduct Administration.

“Rule number one: follow your procedure. If you follow your procedure, and your procedure is well thought-out and entails the various facets that are both required and reflect the institution’s priorities, I think typically, you’ll be O.K.,” Swinton said. “Most schools really strive to uphold their policies as best they can, and there needs to be a recognition that we are institutions of higher education. And while we’re professionals, we are not courts. We shouldn’t be courts. We shouldn’t be a substitute for the courts.

“We should,” Swinton continued, “be able to determine – in a fair and appropriate manner for our institutions – whether someone violated policy.”

Some, such as the Foundation for Individual Rights in Education, have suggested that the direction the Education Department’s Office for Civil Rights is taking could jeopardize the due process rights of the accused – particularly when it comes to the burden of proof. OCR recently cleared up what its officials called a common misconception at most colleges that require a higher standard of evidence by stating that there need only be a “preponderance of evidence” against the accused for a panel to discipline a student – meaning it is more likely than not that the crime occurred. (While the Sewanee hearing predated the OCR letter, in this respect the hearing was consistent with the letter's advice, though Doe's lawyers argued that the standard should be higher.)

Robert Shibley, senior vice president of FIRE, said the verdict is another lesson to universities that they need to follow their written procedures. They’re essential to keeping the judicial process fair for all students, he said.

“Too many times, universities think those are optional in so many ways, as opposed to an expectation,” Shibley said – an expectation not only of the university, but of the courts, the public, the students and their parents. “When you don’t pay attention to procedures, you’re going to start to see verdicts like this come down.”

The suit also alleged that Sewanee violated Title IX. Specifically, the complaint says, the university didn’t provide proper notice of the hearing procedure; conduct an adequate, impartial and reliable investigation; allow for the presentation of witnesses and other evidence; or designate “reasonably prompt timeframes” for the hearing process. The dean of students, Eric E. Hartman, reportedly gave Doe a little over a day's notice of the hearing as well as the charges against him. That was three weeks after the woman formally complained to the university; Sewanee's policies say the accused should be notified no more than five class days after the formal complaint is made.

And Hartman acted as the "prosecutor, fact finder and sentencing judge," the complaint says, making an unbiased hearing all but impossible. Title IX also mandates that institutions ensure that the employees who recommend disciplinary action have “adequate training” as to what constitutes sexual assault and what evidence is relevant in such a case. Had the panel received such training, the lawsuit claims, they would have recognized that the accusing student's medication use and medical history were red flags that should have been investigated further.

 

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