Last week, the University of Colorado Boulder (CU) settled a lawsuit brought by a male student who was accused of sexual misconduct. What we know about the settlement should concern everyone who cares about how colleges handle claims of sexual misconduct, because it illustrates who universities are really looking out for: themselves.
Here’s what we know about this case. On November 7, 2014, the plaintiff, who went only by the pseudonym “John Doe,” filed a complaint against the university in federal court, alleging that the university discriminated against him on the basis of sex, in violation of Title IX, by denying him basic due process in the course of a university judicial proceeding against him for sexual misconduct. In addition to claiming the university used unfair procedures against him, the student maintains that the sexual encounter in question was consensual.
In late February, CU settled the lawsuit with John Doe. According to the Colorado Daily, CU is paying John Doe $15,000 to settle the suit, and John Doe has agreed to withdraw from the university. Here’s the critical part:
“In response to any question about whether Mr. Doe would be welcome back to the university, the university will respond in the affirmative,” CU officials write in the settlement agreement.
If any party, such as another college or university, asks CU about John Doe’s disciplinary record, CU has agreed to say only: “In fall 2013, John Doe (his actual name will be stated) was subject to a student conduct investigation and was found to have violated two code provisions.”
Beyond that, the university will direct all inquires to John Doe and will not provide further information unless he signs a waiver.
So to sum this up, despite continuing to maintain that Doe committed sexual misconduct, CU will tell anyone who asks that he would be welcome back at the university, and, if asked directly, will be intentionally vague about the details of its misconduct findings.
There are only two possible scenarios here, and they both look incredibly bad for the university.
Scenario 1: CU does not actually think that Doe is a sexual offender or any kind of threat to other students, but it subjected him to an unfair process and found him responsible because it was under pressure from a federal investigation by the Office for Civil Rights (OCR) into its sexual misconduct policies and practices. This would suggest that CU cares more about its own interests than about whether students are actually guilty of the offenses of which they are accused.
Scenario 2: CU does think that Doe is a sexual offender and has nevertheless agreed—by promising him a positive reference and agreeing to remain vague about his disciplinary record—to make it easier for him to go someplace else (and possibly commit another offense) in order to make this lawsuit go away. This would suggest that CU is willing to put students at other schools at risk of sexual assault from a known offender to further its own interests.
Which is it, CU?
Boulder Title IX attorney John Clune, speaking to the Colorado Daily, expressed concern about Scenario 2:
Clune said he’s concerned that even though CU did not “undo” its sexual misconduct findings, another university would need to obtain a waiver from John Doe to review his disciplinary record.
“There’s language that looks like it’s designed to conceal that information from some other school he might be transferring to,” Clune said. “That’s troubling to me to see any university who has found somebody responsible for sexual misconduct reach an agreement to conceal that information from other schools.”
CU’s chief legal officer Patrick O’Rourke told the Daily that the settlement was a business decision, stating that “we believe an agreement that saves the university tens of thousands of dollars in defense costs was a prudent use of the university’s resources.” O’Rourke addressed Clune’s concerns thusly:
O’Rourke defended the agreement by saying that the burden falls on John Doe’s next school to obtain the specific details of his disciplinary record.
“The settlement terms allow the university to disclose to any authorized outside party that the claimant was the subject of student conduct proceedings and that he was found responsible for two violations of the student code,” O’Rourke said. “Anyone receiving that information may follow up with the claimant and request whatever information reflects upon his fitness for future educational and employment opportunities.”
For those watching at home, yes, CU just called potentially clearing the way for an alleged rapist to continue his crimes on another campus “a prudent use of the university’s resources.” Please, tell us again how we can trust universities to serve as a victim-friendly alternative to the criminal justice system.
Of course, given how campus “justice” works, the odds are that CU agreed to this settlement because it is not really concerned that Doe is any kind of threat. But there’s no guarantee of that. So much of the current conversation around universities and sexual misconduct proceedings paints universities as the kinder, gentler alternative to law enforcement—a place where traumatized students can turn and have their interests looked after by people who care. And right now, because of the tremendous pressure universities are facing from the federal government to come down harder on sexual misconduct, it may appear to the untrained eye as if universities really are more concerned than law enforcement with the well-being of alleged victims, at least with the rate at which they’re punishing the accused. But it’s important to remember that at the end of the day, universities are businesses, and just like almost any business, they will look after their own interests first. And that reality needs to be a part of every conversation about whether universities should really be handling claims like this in the first place.