Report: Due process lawsuits increased dramatically after Education Dept. overreach

The number of lawsuits filed by students accused of campus sexual assault increased dramatically after the Education Department issued new guidance on how schools should tackle the issue.

Further, the percentage of lawsuits filed by either party involved in an accusation shifted heavily toward the accused, according to a report from Stop Abusive and Violent Environments, an organization trying to reform the way schools handle accusations.

The Education Department's Office for Civil Rights issued a "Dear Colleague" letter in 2011 that severely limited an accused student's ability to defend himself while threatening to remove funding from schools that did not toughen up on campus sexual assault. In the wake of the letter, accused students have been expelled at what appears to be an alarming rate — for he said/she said situations that look less like sexual assault and more like regretted hookups — all in an effort for schools to show they are tough on the issue to avoid a loss of funding or a federal investigation.

The SAVE report found that accusations increased drastically after OCR issued its guidance. United Educators, which ensures about 1,000 colleges and universities across the country, received 262 claims of campus sexual assault between 2006 and 2010 — prior to the OCR guidance. Those claims increased to 78 in 2011 and 73 in 2012. And in 2013, the claims doubled to a whopping 154.

At the same time, lawsuits from students accused who had been wrongly expelled or punished also increased. Just after the OCR guidance was issued, in 2012, just one student filed a lawsuit (that we know of). In 2013 that number increased to 10 and continues to rise. In 2014, 34 accused students filed lawsuits, in 2015, the number peaked at 53. So far in 2016, 24 students have filed lawsuits.

But those are just the lawsuits we know about. SAVE emphasizes in its report that there is no accurate and complete database that includes every lawsuit filed by a student accused of campus sexual assault.

As the lawsuits from both the accused and accusers increased, the percentage of lawsuits from accused students grew. Between 2006 and 2010 (again, before the OCR guidance) lawsuits against schools were pretty evenly split between accusers and the accused. Forty-six percent of the lawsuits filed were from accusers, and 54 percent were from the accused.

That changed after the guidance was issued. Between 2011 and 2013, 39 percent of lawsuits were filed by accusers, while 61 percent were filed by the accused. By 2014 and 2015, just 22 percent of lawsuits were filed by accusers, with 78 percent filed by the accused.

Now, there could be a simple explanation for this. Accusers were granted a free option for remedy once the guidance was promoted. Accusers could file a Title IX claim to OCR and get the federal government to investigate their school — all without needing to hire a lawyer.

Accused students, on the other hand, would have to hire a lawyer (if they could afford one) in order to right a wrong. A few accused students have attempted to file Title IX claims with OCR, but according to Education Secretary John King, the Department has currently accepted only two dozen complaints from the accused.

Meanwhile, OCR conducted some 3,000 investigations in 2015, meaning the vast, vast majority were complaints from accusers. Accused students I've spoken to have also had their complaints denied, but I am not aware of a single accusing student whose claim was denied.

The political implications are obvious. If an accuser is denied, then the government is hurting "victims." Media report after media report would be written about how awful the government is, denying justice for a rape "victim." But an accused student? That's an accused rapist, and the media don't care about him (well, most of the media, anyway). Who cares what the truth of the allegation is, it's politically expedient to just assume guilt and victimhood.

The SAVE report also highlights the lack of information on lawsuits from the accused. The report looks at the outcomes of 30 cases in which a judge ruled in favor or partially in favor of the accused. In the vast majority of those lawsuits, what kind of action was taken is unknown — whether there was a settlement (and what that settlement is) or whether the student's expulsion was overturned or what.

It's much easier to find data on the number of accusers filing Title IX claims, as it is either released by the federal government or available via a Freedom of Information Act request. It's much easier to file a Title IX claim with a supportive government than to hire a lawyer and fight in court. Those reporting on the alleged epidemic of campus sexual assault should remember that.

"The increase in lawsuits and how widespread they are show that it isn¹t just a few schools who are mishandling these cases. Private and public, large and small schools alike are having their processes scrutinized and denounced once they come under court review. This shows that we need large-scale reform, either being the repeal of the Dear Colleague Letter and/or a federal bill," a spokeswoman for the group told the me in an email.

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