COURTS RULING on Side of Students Accused of Sex & Against Universities. Here’s Why.
Nearly a year after having what he claimed was consensual sex and she claimed was assault, the two Aquinas College students were back together, this time separated by a curtain. For 50 minutes they appeared in front of a panel of college employees. 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 filing, the Aquinas student joined a growing tide of male students, accused in campus proceedings of sexually assaulting fellow students, who have lodged federal lawsuits against their schools, alleging discrimination and violations of their due process rights.
“It’s the end of the beginning,” said Andrew Miltenberg, an attorney who represents accused students. Big universities including the University of Southern California, Pennsylvania 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. “I still think there’s a lot of confusion out there on what needs to be done (by universities) 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” Miltenberg said.
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. 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. Since the “Dear Colleague” letter, there have been 319 federal cases in which some action has been taken. Universities have lost 137 decisions, mostly motions to dismiss the lawsuit. They’ve won 119 times. They have ended cases with confidential settlements 63 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.
Case study – University of Michigan: Perhaps the most cited recent ruling in court cases is a lawsuit stemming from the University of Michigan and an appeals court ruling. “Today, we reiterate that holding once again: 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 and adverse witnesses in the presence of a neutral fact-finder,” 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. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’ story to test her memory, intelligence, or potential ulterior motives.”
The impact of the cases: 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. 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.
freep.com D. Jesse
