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Due Process Legal Update: Settlements, Trials, and More

By July 27, 2016

A little over five years ago, the Department of Education’s Office for Civil Rights (OCR) issued the “Dear Colleague” letter that ushered in a period of unprecedented federal intervention into colleges’ internal disciplinary systems. In just those five years, students around the country have filed more than 110 lawsuits alleging that they were denied a fair hearing in campus sexual misconduct adjudications. These cases are now working their way through the courts, with new developments happening frequently. This is an overview of the past month’s developments, which include two settlements, a dismissal, a trial, and a number of new complaints, including one with some particularly shocking allegations.

Georgia Tech

On Monday, The Atlanta Journal-Constitution reported that the University System of Georgia had recently settled two separate lawsuits brought by male Georgia Institute of Technology (Georgia Tech) students who alleged they were denied fundamental fairness in campus sexual misconduct proceedings. Both suits concerned Georgia Tech’s use of a “single investigator” model to resolve complaints of sexual assault. Under the single investigator model—which is growing increasingly popular on campuses nationwide—one person (or small group of people) takes on multiple roles in the investigative and adjudicative processes, acting as detective, judge, and jury. As we reported in January, both Georgia Tech lawsuits concerned alleged misconduct by the university’s investigator, Peter Paquette:

[T]he lawsuits allege that Paquette withheld critical evidence, failed to interview critical witnesses, refused to let the accused see the testimony against them, drafted investigative reports that included rumor and innuendo (such as an unidentified witness’ statement that the plaintiff was “unpleasant and creepy”), refused to recuse himself despite the fact that he “worked very closely” with one accuser in her role as a peer sexual violence educator, and generally acted in a biased fashion, even laughing at one plaintiff’s attorney as he pleaded for Paquette to interview some key witnesses.

According to the Journal-Constitution, one of those lawsuits ended with a settlement in which “system officials agreed to pay a male student $125,000 to settle a case in which he had been accused by another male student of sexual assault.” That student was also reinstated at Georgia Tech earlier in the litigation—“the only time in the past five years the state Board of Regents had overturned any public college in a sexual assault case.”

In the other settlement, “system officials agreed to allow [the student] to receive his diploma from Georgia Tech but prevent him from attending Tech or any other school in the University System. ” Additionally, “[h]is record will also include a notation that he sued Georgia Tech and the Board of Regents alleging he was denied due process and had been wrongfully found responsible for the alleged offenses.”

The University System of Georgia has also revised its policies in an effort to address some of the due process concerns raised by its previous policies. In May of this year, FIRE reached out to the University System of Georgia Board of Regents about its new policies. Although FIRE commends the University System of Georgia and members of the Georgia legislature for working together to draft policies that provide more due process protections for all parties, the policies as drafted still raise due process concerns and, in addition, raise concerns about students’ First Amendment rights. Specifically, FIRE highlighted our concerns with the policies’ definition of sexual harassment, the lack of a provision securing the active assistance of counsel, and the standard of review.

FIRE looks forward to continued conversations with university officials and legislators in hopes of securing a system-wide policy that protects the rights of all students on campus.

UC Santa Barbara

While the Georgia Tech cases ended at least somewhat favorably for the students, a California federal court on Monday dismissed a UC Santa Barbara (UCSB) student’s Title IX lawsuit against UCSB, finding that his complaint did not contain specific enough allegations of sex discrimination to survive the university’s motion to dismiss. As I’ve written about before, a number of courts—including, now, this one—have dismissed students’ Title IX claims on these grounds:

Many accused-student plaintiffs have filed Title IX claims, and most have failed, in large part because of the way courts have interpreted pleading standards (the requirements a plaintiff’s complaint must meet in order to set forth a plausible claim for judicial relief). Although a motion to dismiss is brought at the early stages of litigation—before the parties have engaged in discovery—a number of judges have recently dismissed plaintiffs’ Title IX claims for failing to offer particularized evidence of sex discrimination. Because it is difficult to obtain this kind of specific evidence without discovery, students alleging sex discrimination in campus judicial proceedings have faced an extremely high bar for Title IX claims as a result.

In recent months, however, more judges have recognized the near-impossibility of obtaining particularized evidence of sex discrimination prior to discovery, and have allowed students’ lawsuits to proceed to the stage of litigation where discovery can begin.

The judge in the UCSB case acknowledged this trend, noting that “courts are split on whether allegations that a university was influenced by gender bias in light of local and national backlash satisfy the pleading requirements” necessary for a complaint to survive a motion to dismiss. But he ultimately sided with the courts that have taken a stricter approach to pleading, thus “ignoring Plaintiff’s conclusory allegations that the alleged procedural deficiencies in the hearings…were the result of gender bias” and dismissing UCSB’s motion to dismiss the Title IX claim.

Brown University

Meanwhile, back on the East Coast, a Brown University student’s breach of contract lawsuit, stemming from his suspension from Brown on a finding of sexual assault, went to trial in a Rhode Island federal district court.

According to the pretrial memorandum of the student/plaintiff (who is proceeding under the pseudonym John Doe), Brown suspended Doe after a fellow member of the university’s mock trial team alleged that a sexual encounter between them had not been consensual. The crux of Doe’s argument is that although the sexual encounter occurred during the 2014–2015 academic year, the hearing panel erroneously found him responsible by applying an “affirmative consent” definition newly adopted for the 2015–2016 academic year. Doe alleges that Brown breached its contract with him by “applying the novel definition of consent contained in the 2015–16 Title IX policy retroactively to [his] 2014 encounter.”

The case is before William E. Smith, Chief Judge of the U.S. District Court for the District of Rhode Island. In April, Judge Smith granted Doe’s motion for a temporary restraining order to temporarily prevent Brown from enforcing its punishment against him, ruling that “John [Doe] has a reasonable likelihood of success on the merits of his claim that Brown University breached its contract with him by applying the definition of consent” from 2015–2016.

Back in February, in another lawsuit against Brown by a different student found responsible for sexual misconduct, Judge Smith denied most of Brown’s motion to dismiss, allowing a substantial number of that plaintiff’s claims to proceed to the next stage of litigation.

Closing arguments in the trial are set for August 16.

New Complaints: University of Alaska Fairbanks and More

While existing cases work their way through the courts, additional lawsuits continue to be filed on a regular basis. Indeed, since my last update on June 17, at least 6 more cases have been filed in federal and state courts.

Last week, former University of Alaska Fairbanks (UAF) student Nolan Youngmun filed a lawsuit alleging that UAF breached its contract with him, and discriminated against him on the basis of sex, by withholding his degree pending the outcome of a Title IX investigation.

The Alaska Dispatch News reports that although Youngmun was tried and acquitted of all charges in a court of law, UAF’s Title IX investigation into the matter is still pending more than 15 months later. Although Youngmun has completed all of the coursework for his UAF degree, he alleges that the university has still not awarded it to him. What’s more:

According to the complaint, [UAF Title IX Coordinator Mae] Marsh told the assigned investigator, “The alleged perp graduates in three weeks, we need to get the administrative investigation concluded so we can make a preponderance call and expel prior to graduation.”

This is a shocking allegation. If true, it means that the Title IX Coordinator ignored the presumption of innocence and directed the university’s investigator to proceed under the assumption that Youngmun was guilty. We will be watching this case very closely.

In addition to the case at UAF, new lawsuits have also been filed against the University of Pittsburgh, Florida State University, the University of Colorado, and La Sierra University in California. A suit was also filed against the University of Vermont, although that plaintiff quickly withdrew his case, with his lawyer telling the Burlington Free Press that “the issues were worked out.”

As always, FIRE will continue to keep you updated on this rapidly developing area of the law.

Schools: Georgia Institute of Technology University of California, Santa Barbara Brown University University of Alaska Fairbanks