By Emily Yoffe at Slate
Drew Sterrett just joined a very small cohort: He is a male college student who has had a sexual assault finding against him reversed. Sterrett, 22, left the University of Michigan in 2012, halfway through his sophomore year, after the university ruled that he’d engaged in sexual intercourse with a fellow student without her consent. As I reported in Slate last year, Sterrett sued the university in federal court, claiming that the proceedings led to what he said was an erroneous conclusion and violated his 14th Amendment rights to due process. When the court rejected the university’s motion to dismiss the case, the two parties went into mandatory mediation. This rare reversal was the result, with Michigan vacating all of its findings against Sterrett and clearing his transcript of any disciplinary action.
A finding of responsibility for sexual misconduct on campus can have wide-ranging and permanent effects on a student’s life. As Sterrett’s lawsuit noted, a university official acknowledged to him that the sanctions he faced would “limit his educational, employment and career opportunities.” At a recentHouse hearing on campus sexual assault, Joe Cohn of the Foundation for Individual Rights in Education testified that such a finding can follow a student for the rest of his life, preventing him from continuing his education and even from entering certain professions. Sterrett himself had an acceptance from another college rescinded when it learned of the Michigan finding.
In an email exchange, Sterrett described his reaction to the news as “a sense of excitement and joy.” He says of the last three years, “It really was emotionally difficult, debilitating and crushing at times.” Sterrett had been enrolled at Michigan’s school of engineering. He says because of the long delay in his education, he’s put aside his goal of getting a B.S. in that field. But he now hopes to complete a B.A. in economics and to work with small startup businesses. His attorney, Deborah Gordon, says, “The whole goal was to let Drew go on with his life.”
The sexual encounter in question took place in March 2012, in the spring semester of Sterrett’s freshman year. Legal documents described how the female student, CB, who was a friend of Sterrett’s, asked to stay in his room because her roommate was having guests. He expected her to sleep on a mat on the floor and was surprised when she got into his bunk bed. Soon the two were kissing, then more; CB asked Sterrett about a condom, and he got one. Their encounter went on for so long, and was so loud, that Sterrett’s roommate, who was trying to sleep in the top bunk, sent Sterrett an annoyed Facebook message about being kept awake. The roommate later gave a sworn statement that he was close enough to the pair that he would have heard, and intervened, if CB had said no or objected.
The semester ended, and Sterrett and CB left school. The events that prompted the university investigation of Sterrett are described in an affidavit sworn on his behalf by LC, a friend of CB and her sophomore-year roommate. While CB was home for the summer, her mother discovered her diary, in which the young woman described her drinking, drug-taking, and sexual encounters. (In her own deposition, CB confirmed the contents of the diary.) After confronting her daughter with her discovery, CB’s mother drove her to campus, where CB made her accusation. She never reported it to the police.
During the summer, campus officials informed Sterrett via Skype that a student had made an allegation against him. When the tone of the interview turned hostile, he asked if he should retain a lawyer. He was told if he ended the interview this would be reported to the university and the investigation would go on without him. He continued to talk.
Sterrett was never provided with the charges against him in writing. The Skype interview turned out to be his sole encounter with the campus officials investigating and deciding his case. He never had a chance to question his accuser. He was not told the names of the witnesses the university interviewed in its inquiry. In November of his sophomore year he received a “Sexual Misconduct Investigation Report,” which concluded he was responsible for the accusation against him. Sterrett was suspended from the school until 2016, a year past CB’s expected graduation date. After a series of appeals, his punishment was reduced, but he was placed on “disciplinary probation,” which would have put restrictions on his movements so onerous that, he concluded, complying with them was impossible. By then, he had already left the school for good.
Rape and other sexual assaults are grave crimes that demand investigation and punishment. But the Department of Education’s Office for Civil Rights, citing unreliable statistics to prove that such assaults are an epidemic on American campuses, has issued edicts that have created systems of adjudication and punishment that abrogate the rights of accused young men. In the past five years,about 70 male students found responsible for sexual misconduct have brought lawsuits against their schools, alleging that their treatment violated their contractual or due process rights or was so biased as to constitute sex discrimination against them.
Some of these lawsuits have been dismissed. But others continue to make their way slowly through the courts, and a few cases have been decided in favor of the young men. California Superior Court Judge Joel Pressman recently ruled that the University of California, San Diego, did not give a fair hearing to a male student suspended for a sexual encounter. Pressman’s finding noted the student’s inability to ask questions or to see witness statements. The judge said the school “abused its discretion” when it increased the punishment of the accused following his appeal. The judge also found that the facts presented did not support the school’s conclusion that there was a sexual violation. He wrote, “The sequence of events do not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe’s personal regret for engaging in sexual activity beyond her boundaries.” (The University of California Regents are appealing the ruling.)
In Tennessee, Chancery Court Judge Carol McCoy overturned the expulsion of University of Tennessee at Chattanooga wrestler Corey Mock. He was punished for a sexual encounter that a young woman said was nonconsensual and Mock said was consensual. McCoy took aim at the “affirmative consent” standard that is becoming the norm on campuses and is required by law at public and private institutions of higher education in California and New York. These standards hold that consent must be explicitly expressed, preferably verbally, for each escalation of a sexual encounter each time an encounter takes place. McCoy found that because of the school’s policy on consent the “UTC Chancellor improperly shifted the burden of proof and imposed an untenable standard on Mr. Mock to disprove the accusation …” She also wrote that the policy “is flawed and untenable if due process is to be afforded to the accused.”
If a young man has committed felony sexual assault, simply kicking him out of school is an insufficient punishment and does nothing to keep society safe. Felonies belong in the criminal justice system. But OCR has mandated that institutions of higher education create a quasi-criminal justice system to deal with alleged sex crimes, a task ill-suited to college and university administrators. The system isn’t working for anyone, as the Michigan case amply demonstrates. CB claims her own rights were infringed by the original proceeding against Sterrett. In 2014, long after he left campus, she filed a complaint with OCR, asserting her treatment by the university violated her civil rights under Title IX, the federal law that prohibits sex discrimination in education, and asking for the University to pay for her “additional educational expenses” and attorney fees. Part of her complaint is based on the length of time it took for the case to be resolved (though in a deposition, CB acknowledged that her vacillation about whether to proceed with the case held up its resolution for several months). OCR took her complaint and last year added the University of Michigan to a list of schools, now numbering about 130, they are investigating for violation of Title IX.
Through her attorney, Douglas Fierberg, CB declined to be interviewed for this story. But he released a statement by her about the settlement. It reads, in part:
I caution all University of Michigan students and their parents to avoid reporting sexual violence or using the University’s Title IX process at all costs. … I have come to believe they do not care about individual students seeking help and are more concerned with producing the paperwork which demonstrates compliance with U.S. Department of Education mandates. … [T]he biggest threat on campus has now become the Title IX Sexual Assault Policy as implemented by the University.
Michigan spokesman Rick Fitzgerald declined to comment on Sterrett’s settlement, but in response to CB’s remarks he issued a statement urging students to report sexual misconduct to school officials.
President Obama has made campus sexual assault a signature issue. Before the president’s second term ends, he would do well to take a long, hard look at the rules and procedures his administration has put in place. A system that cuts short the educations and damages the futures of young men like Drew Sterrett is not a just one. Thankfully, Sterrett now has his good name back, and with it the chance to finally get his college degree. By mutual agreement, it will be somewhere other than the University of Michigan.
Schools: University of Michigan – Ann Arbor