At Syracuse University, counselors on the counseling center’s Sexual and Relationship Violence Response Team play a dual role: they can provide therapy to a student who may have been sexually assaulted, while also serving as that student’s advisor in campus disciplinary proceedings. 

Attorneys for John Doe, a student suing Syracuse University for expelling him after an allegedly unfair disciplinary proceeding, believe that the complainant’s advisor, Tekhara Watson — a member of the Sexual and Relationship Violence Response Team — may have pressured her to file a university Title IX complaint even after she chose not to pursue the matter with police. Doe’s attorneys believe this information may be critical to proving their case that Syracuse’s treatment of Doe was biased and unfair, and they requested it be turned over as part of discovery in the case. Last week, a federal magistrate judge agreed, ordering that a limited number of “stringently redacted” records be turned over to Doe and his lawyers.

The order came after the judge conducted an in camera review of the documents and determined that “portions of Ms. Watson’s notes are relevant to plaintiff’s theories that Syracuse University’s disciplinary proceedings were procedurally unfair and biased against male students.” Syracuse, by its own admission, maintains a process in which a counselor’s role as a therapist can be “intertwined” with his or her role as an advocate in campus judicial proceedings. Were that not the case, Doe and his attorneys would not have been seeking her records.

Far from being a “broad” decision that suddenly makes therapy records fair game for accused-student plaintiffs and their attorneys, this is a narrow ruling based specifically on Syracuse’s choice to intertwine the roles of therapist and procedural advocate in sexual misconduct cases. Moreover, the judge followed a very thorough process, ordering a redacted production only after privately reviewing the documents and determining that they were so relevant to Doe’s claims of bias that the interests of justice demanded they be turned over.

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In a shocking ruling, the U.S. Court of Appeals for the Tenth Circuit outlined numerous ways in which the University of Denver (DU) railroaded an accused student despite serious deficiencies in the accuser’s story, but didn’t overturn his expulsion because it claimed the due process violations weren’t related to the accused student’s gender.

2014 Background: John Doe was a freshman at DU. He had a sexual encounter with a female freshman in his dorm room. Six months later the female– at the insistence of her then-boyfriend – accused John of sexual assault. John was expelled and filed a lawsuit like many wrongly accused students who were denied due process.

2020 Ruling:  In response to the evidence, to the arguments, Judge McKay wrote along these lines.

To the extent Plaintiff contends that an inference of anti-male bias arises from DU’s attempts to encourage sexual-misconduct reporting generally, we find any such argument unpersuasive. At most, encouragement of this nature might possibly be construed as exhibiting a bias against potential respondents because it increases the likelihood that potential respondents will be subjected to investigation and possibly sanctioned if found responsible. But both men and women can be potential respondents, and therefore any bias against them would not be bias on account of gender.

There was no doubt whatsoever that there was bias. There was no doubt, none, that University of Denver railroaded the plaintiff. The judges themselves called what happened to John “a railroading.”

Even after all this, the judges decided John hadn’t proven his claims to their satisfaction. Specifically, they wrote that even though 35 of 36 accusers at DU between 2011 and 2016 were female and all accused students were male, there was not enough evidence to suggest the school had an anti-male bias. Instead, they said it was simply an anti-accused bias.

This is a common claim that only works in court. On campus, women use Title IX to claim gender discrimination because they say they are the majority of sexual assault victims. Then it would seem it would be gender bias to railroad accused students since they are the majority of the accused. But we don’t live in a fair world.

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A year ago Michigan State University refused to comply with an appeals court precedent that requires an in-person hearing with cross-examination to students facing suspension or expulsion for sexual misconduct. It didn’t follow through until a medical school student sued the taxpayer-funded institution for depriving him due process in a proceeding stemming from three-year-old accusations by two female students in his program. Robby Soave at Reason has a sad update to the case: “Dev,” the son of Sri Lankan immigrants, has little chance of ever getting his degree and being able to pay back his $283,000 in medical school debt. The federal judge who ordered MSU to let Dev take necessary exams for his program a year ago ultimately blessed its unfair process in a December ruling, according to Soave, who has reviewed the full case file. Dev also lost his attorney in January and can’t afford “the caliber of lawyer” he needs to successfully appeal.

“The elephant in the room, of course, is Larry Nassar,” Soave writes in his exhaustive feature, referring to the MSU doctor who was later convicted of “serial sexual abuse” against female Olympic gymnasts. MSU’s failure to stop Nassar-who was credibly accused of molesting more than 250 girls- is, of course a travesty. But a course correction that involves automatic suspicion of the accused and departures from due process norms is not the right remedy. Unfortunately, this is exactly what has occurred on college campuses all over the country.

The elements of Dev’s case resemble many others. A night of drunken sex that one party claims was consensual and another party remembers differently; a significant passage of time; an insinuation that eventually becomes a formal accusation; a fraught effort to mount a defense; a life-derailing finding of guilt. Each party’s account of the debauched night’s events was a contradictory mess, but MSU wanted a guilty finding against Dev. 

He is one of many students who find themselves in this situation. According to The Atlantic‘s Emily Yoffe, 40 percent of alleged victims do not immediately report what happened, and the average period of delay is 11 months.

How can these men defend themselves against this kind of accusation, when neither they nor their accusers remember everything that happened? How do they prove beyond a doubt that the people giving evidence against them—who themselves made embarrassing decisions—had reason to distort the truth, to disguise their own moral failings? How does an ostensibly fair system determine that exactly one person—Dev—must pay for what happened that night, and suffer the end of his career aspirations, social stigma, and permanent crippling debt, because of it?

“I’m broken,” says Dev. “I can’t fight this.”

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