Out of Balance

Last week, the California Court of Appeals ruled against the University of Southern California in a lawsuit brought by a student suspended for allegedly sexually assaulting a woman during group sex.

The encounter had started as consensual, the woman told the university, but soon became violent. The accused student violated Southern California's sexual misconduct policy, the university argued, not by harming the woman himself, but by failing to stop the other men from slapping her and for later leaving her alone with them.

The accused student, according to the court’s decision, was not "provided any information about the factual basis of the charges against him," was not able to examine the evidence supporting the victim's statements and was not allowed to appear before the panel deciding his case. 

The case joins three other legal wins for accused students in the past two months, and at least 10 in the last year. Some legal experts, including the federal and state judges deciding the cases, say the flurry of recent successes for disciplined students may show how some colleges and universities are eliminating “basic procedural protections” in an attempt to combat campus sexual assault.

“In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases.” Gary Pavela, editor of the the Association of Student Conduct Administration's Law and Policy's Report and former president of the International Center for Academic Integrity, said. “Something is going seriously wrong. These precedents are unprecedented.”

As recently as a year ago, accused students seemed destined to lose lawsuits challenging their penalties. In May, it was widely believed that there had been just one such case in recent memory -- a lawsuit brought against the University of the South in 2011 -- that made it to court and had a favorable outcome for an accused student. Though a few cases have seen success in the way of pretrial settlements -- including recently at the University of Colorado at Boulder, Swarthmore College and Xavier University in Ohio -- many more have been dismissed outright.

Then, in July, a California trial court judge ruled that the University of California at San Diego must reverse the suspension of a male student who allegedly assaulted a female student. The student accused the university of violating his due process rights by presuming his guilt ahead of a hearing, not allowing the accused student access to witnesses and evidence, and informing a hearing panel of his guilt instead of letting the panel reach its own conclusion. The judge in the case agreed.

Accused students punished by the University of Southern California and the University of Tennessee at Chattanooga soon won lawsuits against their institutions, as well. In September, a student who sued Middlebury College won a preliminary injunction allowing him to return to campus while the case is adjudicated.

In late February, a federal court ruled in favor of a disciplined George Mason University student who argued he was treated unfairly during his case’s appeal process. The sophomore, who had been disciplined previously for issues unrelated to the case, had developed a relationship with a female student in which the two had consensual, sadomasochistic sex. During one encounter, the female student alleged that she told the male student she was unsure if she wanted to continue. The male student continued the sexual activity, however, arguing that she did not use the couple's safe word for stopping sex, "red."

According to court records, the female student later recorded the male student admitting to having sex with her even after she said the safe word, but a hearing panel initially found the student not responsible of the sexual misconduct. The university then ruled against him after the woman appealed the ruling, and he was expelled. The male student later learned that his expulsion was based not only on the alleged sexual assault, but on other accusations against him of which he had not been notified, including harassment and for having been caught with a knife on campus as a freshman.

The federal court concluded that the student was not given an opportunity to defend himself when the university failed to notify the student of all the charges against him, and that an assistant dean had “made up his mind so definitively that nothing [the accused student] might have said could have altered his decision.”

Earlier this month, a federal judge in Boston rejected Brandeis University’s attempt to dismiss a lawsuit by a student disciplined over sexual assault allegations there. The Brandeis student was accused of sexually assaulting his long-term partner. After the two broke up, according to court records, the former partner "attended two sessions of university-sponsored sexual assault training, which began (in his words) to change his 'thinking' about his relationship." He then reported his partner for sometimes awakening him with a kiss and persisting even when told to stop, for performing unwanted oral sex on him and for touching his groin while the two watched a movie.

In his harshly worded opinion, the judge, F. Dennis Saylor, wrote that the university failed to provide sufficient notice of the charges against the student and did not allow him to cross-examine the complainant or his witnesses. The judge expressed concern that the university allowed the same official, a former lawyer for the U.S. Department of Education's Office for Civil Rights, who investigated the complaint to also serve “as prosecutor, judge and jury” in the case.

“Brandeis appears to have substantially impaired, if not eliminated, an accused student’s right to a fair and impartial process,” Saylor wrote. “And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”

Also this month, a judge ruled that a similar lawsuit against James Madison University can proceed. In that case, according to the judge’s decision, the accused student was not allowed to receive a copy of the charges against him or to make copies of his own. Instead, he was only allowed to take notes as he read the complaint. A three-person panel ruled in favor of the accused student, but the student was suspended for five years after an appeal.

During the appeal process, according to the decision, the accused student was again unable to make copies of any file materials involving his case. The student was given no prior notice of the appeal board’s meeting date, nor was he allowed to appear before the board. He was suspended without any explanation as to what led the appeal board to reverse the hearing board’s original decision.

Joe Cohn, the legislative policy director at the Foundation for Individual Rights in Education, said he “expects to see more and more schools told they’re botching this” as accused students continue to bring lawsuits against institutions that have disciplined them. Cohn said the increase in such lawsuits -- and in wins for the accused -- is a result of colleges adopting policies to appease the U.S. Department of Education.

In 2011, the department's Office for Civil Rights issued a Dear Colleague letter that urged institutions to better investigate and adjudicate cases of campus sexual assault. The letter clarified how the department interprets Title IX of the Education Amendments of 1972, instructing institutions to avoid using mediation when resolving complaints of sexual assault and to use the preponderance of evidence standard of proof when determining if a student is responsible for sexual misconduct.

“The more the schools shift to policies that on their face are fundamentally unfair, the more obvious it will be to courts that they need to step in,” Cohn said. “More and more courts are recognizing the flaws in unprofessional tribunals deciding these cases in an environment that is highly politicized. And the more extreme pressure that campuses feel to expel accused students, the more you’re going to see successful cases brought by accused students.”

Colleges are indeed under pressure, from both the Department of Education and activists, to more aggressively investigate and adjudicate cases of campus sexual assault. Several of the recent court opinions note that the botched hearings occurred soon after a university received criticism for failing to protect a sexual assault victim in a separate case, or after the Department of Education began investigating an institution for violating Title IX.

Pavela said while Title IX is not to blame for these colleges cutting corners in their disciplinary processes, the Department of Education has failed to emphasize due process when enforcing its policies.

"Colleges and universities are escalating and criminalizing the prosecution of sexual misconduct cases, while eliminating basic due process for the accused," Pavela said. "Title IX does not require this approach and courts are unlikely to allow it. Silence on procedural fairness, however, sends the subliminal message that due process is an impediment to more 'convictions.' We're seeing the fruits of OCR's due process silence now. University sexual misconduct policies are losing legitimacy in the eyes of the courts. That's a disaster for Title IX enforcement. And OCR shares ample responsibility for it."​

Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, said it would be premature to argue the Education Department has used Title IX to “force the pendulum to swing too far in the other direction.” While one judge did note his concern about using preponderance of evidence as a standard for determining guilt, the recent victories for accused students have not been based on Title IX claims, and in the case against George Mason, the judge actually dismissed the accused student's Title IX claim.

“No court has expressly held something that’s required by the Department of Education and its Dear Colleague letters as violating due process,” Buzuvis said. “What these cases show is that in some cases, colleges are going beyond what Title IX requires and in ways that are infringing on the rights of disciplined students. The line is being established as to what kinds of protections students can expect and rely on, and going forward universities should do a better job of making sure their responses take both Title IX and procedural fairness into account. There’s no reason yet to believe the two can’t coexist.”