By Tyler Kingkade at The Huffington Post
Just before final exams in the spring semester, Duke University determined that senior Lewis McLeod had committed a sexual assault and should be expelled. The Dean’s List student would not receive his diploma, which in turn prevented McLeod from starting at the Wall Street firm where he’d secured a job. But a Superior Court judge in North Carolina put that expulsion decision on hold last Thursday, blocking Duke’s attempt to dismiss a lawsuit filed by McLeod in a last-ditch attempt to receive his diploma.
McLeod is the latest male student accused of sexual assault and punished with expulsion to claim in court that he was expelled without cause. Similar cases have popped up recently at the University of Michigan, Drew University in New Jersey and Columbia University in New York.
In a similar case at Saint Joseph’s University, a federal district court in Pennsylvania even allowed the accused to sue the school and his alleged victim for slander and interference with his contractional relations with the university.
The cases attract media attention in part for their novelty: According to the CDC, roughly 1 in 5 women experience sexual violence while in college. One 2010 study of sexual assault reports on a college campus estimated the rate of false accusations for rape to be between 2 percent and 8 percent, although some victim advocates argue that number is actually lower due to underreporting.
That a student would be expelled on what proves to be a demonstrably false charge would be exceedingly rare. Increasingly less rare are the lawsuits brought by individuals punished by colleges and universities after having been found culpable for sexual misconduct.
“Here suddenly you’re looking at the other side of the coin,” GWU professor and attorney John Banzhaf told The Huffington Post. “It turns out that [the accused] too have remedies … I think this is catching a lot of attention, and I think you’re going to see a lot more of this.”
Banzhaf is well known as an anti-smoking activist who also challenged McDonald’s over the health risks associated with eating too much of its food.
McLeod was accused of sexually assaulting a freshman student in the fall at the Sigma Nu fraternity. He claimed it was consensual, and that he stopped after she started crying, according to Indy Week. A university panel decided the accusing woman was intoxicated to the point that she was “unable to give consent,” though McLeod said the school failed to interview key witnesses.
Judge W. Osmond Smith III ruled McLeod is likely to suffer “irreparable harm” if expelled. Smith ordered on May 29 that Duke is blocked from expelling the McLeod “pending a final determination on the merits in this action, and the plaintiff is, accordingly, granted a preliminary injunction to such effect.”
Duke had earned the praise of rape victim advocates when it announced it would make expulsion the preferred sanction for students found responsible for sexual assault, after already eliminating the statute of limitations for bringing such charges in campus adjudications.
Typically, civil libertarians have challenged campus adjudications for being too quick to find an accused student guilty of sexual assault. Such has been the argument recently in the wake of White House efforts on the issue, and was the case 15 years ago. Free speech watchdog groups, like the Foundation for Individual Rights in Education, frequently complain that schools are using a standard of evidence that is insufficient.
Banzhaf is not the only one who has taken note of the recent spate of legal cases, and attorneys and analysts like him see adjudication as the issue that’s likely to come under increasing scrutiny.
“I’m not saying I know what the right answer is, but I do think one of the issues that’s going to be more focused on is the adjudicatory processes,” said Mark Brossman, co-head of the Employment and Employee Benefits Group at Schulte Roth & Zabel and a higher education regulations expert. “Part of that is, what’s the standard of proof? How much do we need? Obviously, you don’t want to keep somebody there that you think did it.”
Longtime victim advocate S. Daniel Carter, director of the 32 National Campus Safety Initiative at the VTV Family Outreach Foundation, said getting the right balance in campus adjudications is critical for the accusers as well.
“If you have a process that does not treat both the accuser and the accused fairly, it’s just wrong,” Carter said, “and it’s not going to be politically viable amongst the community.”
To be sure, victims have filed lawsuits against universities as well, in addition to federal complaints, claiming schools mishandled their sexual assault cases and let assailants off easy. Which illustrates why legal experts say colleges need to get these campus adjudications right.
Carter was involved in rule-making for the Campus SAVE Act, which will allow both the accused and the accuser to choose any person, including attorneys, to serve as an adviser during campus adjudications. Advocates for both victims and civil liberties hailed that change as a positive step.
Banzhaf said that, regardless of Education Department regulations, colleges that want to be fair both to victims and to those accused must provide adequate training for the campus adjudicators tasked with evaluating charges. Colleges that fail to do so keep the door open for lawsuits from aggrieved victims as well as accused assailants.
“If the people are not adequately trained,” Banzhaf said, “they’re basically courting trouble by bringing in people who basically have no idea what they’re doing, to either harm the women by not being vigorous, or harm the men by not honoring their rights.”