By Jake New at Inside Higher Ed
Last week, Brandon Austin, a former college basketball player, filed a lawsuit against the University of Oregon for $7.5 million, arguing that administrators there violated his rights when they suspended him over his alleged involvement in a gang rape.
Austin was able to transfer to a community college and play basketball there last season, but has since left to (so far, unsuccessfully) pursue a professional basketball career. In the lawsuit, Austin claims that the punishment caused him emotional distress and lessened his chances of one day playing in the National Basketball Association. His case joins more than 50 other pending lawsuits filed by men who say they were unfairly kicked off campus after being accused of sexual assault.
If filed last year, Austin’s lawsuit would have seemed like a long shot, especially as the athlete had been accused of sexual assault at another institution before he enrolled at Oregon. But accused students suing the institutions that suspended or expelled them are now increasingly winning those lawsuits, including at least four cases in the last four months.
“Almost every week, there’s at least one more suit like this,” Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, said. “It’s a very rapidly emerging area of law. Up until this point, it’s an area that has not been super fleshed out by the courts, and earlier lawsuits have been largely unsuccessful. But that’s starting to change.”
The increased success of these lawsuits adds another wrinkle to colleges’ attempts to address the problem of campus sexual assault. Institutions are under intense pressure from the Obama administration and activists to crack down on sexual assault and to remove alleged offenders from campus, but the stakes are now also high if they respond to that pressure by cutting corners.
As recently as a few months ago, accused students seemed destined to lose lawsuits challenging their penalties. In May, it was widely believed that there had been just one such case in recent memory — a lawsuit brought against the University of the South in 2011 — that made it to court and had a favorable outcome for an accused student.
Though a few cases have seen success in the way of pretrial settlements, including recently at the University of Colorado at Boulder, Swarthmore College and Xavier University in Ohio, many more have been dismissed outright.
Then, in July, a California trial court judge ruled that the University of California at San Diego must reverse the suspension of a male student who allegedly assaulted a female student. The student accused the university of violating his due process rights by presuming his guilt ahead of a hearing, not allowing the accused student access to witnesses and evidence, and informing a hearing panel of his guilt instead of letting the panel reach its own conclusion. The judge in the case agreed.
The UCSD lawsuit was, at the time, a rare win for accused male students who turn to legal action after having been found responsible for sexual misconduct. Since then, accused students suspended or expelled by the University of Southern California and the University of Tennessee at Chattanooga have also won lawsuits against their institutions. In September, a student who sued Middlebury College won a preliminary injunction allowing him to return to campus while the case is adjudicated. In Tennessee’s case, a judge ruled that the university’s policies were unjust, as they force an accused student to prove his innocence rather than a university to prove his guilt.
Harris, of FIRE, cited key differences between the recent cases and the ones that accused students have lost: the losing cases focus on gender discrimination and are often heard in federal court. The cases at USC, UCSD and Tennessee were filed in state courts. “They have a little more leeway to overturn cases because of the relationship public universities have as state bodies, and the responsibility they have to due process,” Harris said.
Cases that claim an accused male student has been discriminated against because of his gender, Harris said, rarely result in the student winning. That’s because Title IX of the Education Amendments of 1972 — the gender discrimination law that requires colleges to investigate and adjudicate cases of campus sexual assault — does not provide a way to challenge disciplinary policies simply based on disparate impact.
While university sexual assault policies do affect male students more than female, the policies themselves aren’t to blame, as they are written to be gender neutral. The disparate impact on male students is not because colleges are targeting men, a number of courts have concluded, but because men commit and are accused of sexual assault far more than women. Two recent lawsuits against the University of Missouri and Augustana University in South Dakota were both dismissed for similar reasons.
The cases that have resulted in wins for the accused are generally built on claims that the disciplined students’ rights to due process were violated, not that they were discriminated against for being men.
Even lawsuits in federal courts are starting to have some level of success by focusing on due process. A recent lawsuit against Pennsylvania State University survived the university’s motion to dismiss, with a federal judge granting the accused student a preliminary injunction that prevented his suspension and deportation back to Syria.
In an analysis of the UCSD case, Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, said that institutions can still fulfill their obligations under Title IX without taking the shortcuts the University of California at San Diego and others seemingly have. When colleges fail to follow due process, it makes it easier for accused students to win lawsuits and reverse their suspensions or expulsions — and that could mean letting predators back on campus, too.
“Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well,” Buzuvis said. “It is possible to hold fair hearings and comply with Title IX, and that is what colleges and universities should be striving to do.”
Not everyone’s convinced that accused students can get a fair shake, at least not under the current system. Emboldened by the recent burst of accused students winning lawsuits against the institutions that suspended them, civil liberties groups like FIRE argue that the pendulum that has long prevented sexual assault victims from finding justice has now swung too far in the other direction.
In July, congressional Republicans introduced a bill designed to reverse that momentum by limiting how colleges could respond to cases of campus sexual assault.
The bill would allow an alleged victim to decide whether to involve police officers, but a college could not begin its own investigation unless the student chose to report the incident to law enforcement. Currently, colleges are required to conduct investigations even if police officials are not informed of the crime, a rule that victims’ advocates say encourages reporting of sexual assault to campus officials.
Under the legislation, both the accused and the accuser would have the right to hire lawyers at their own expense, and both would be allowed to question witnesses. Colleges could also choose what standard of evidence to use when deciding if a student committed the assault, rather than being required to use the lower burden of proof known as preponderance of evidence.
Last week, Senators Kirsten Gillibrand, a Democrat from New York, and Claire McCaskill, a Democrat from Missouri, blasted the legislation and the support it’s received as “disturbing.” The two lawmakers are the lead co-sponsors of the Campus Accountability and Safety Act, a separate piece of legislation that would require confidential resources for victims of sexual assault and would impose fines on colleges that mishandle sexual assault cases.
McCaskill said while it’s important for colleges to honor the due process rights of accused students, treating both the accuser and the accused fairly can be accomplished without turning campus hearings into courtrooms. The legal system is about is “about depriving someone of their liberty, putting them in prison, labeling them a sex offender for the rest of their life,” she said, while the Title IX process is focused on campus safety.
McCaskill said the Campus Accountability and Safety Act would help remove “the underpinning of these lawsuits” by making adjudication processes uniform for all institutions, including requiring training for those involved with the investigations and allowing both students to have advisors during hearings.
“When these proceedings are fair and professionalized, we’re better able to protect and empower students,” she said. “That’s including the rights of the accused.”
Schools: University of Southern California University of Colorado at Boulder Middlebury College Swarthmore College Pennsylvania State University – University Park University of Oregon University of California, San Diego