Colleges won’t change the way they handle rape claims until this happens
Paul Nungesser finally got justice last week. Nungesser — who was falsely accused by Emma Sulkowicz (aka Mattress Girl) of sexual assault during their sophomore year at Columbia University and then subjected to harassment by her and other campus activists for years afterward — sued the school under Title IX, claiming that he was subject to unfair treatment because of his sex. Columbia announced earlier this month that it had settled the suit.
But whether other men like Nungesser — whose lives are thrown off track for years by false accusations of rape mishandled by universities — will be forced to endure the same experience remains likely. There are many reasons why Columbia’s acknowledgment of its culpability won’t have much effect on other universities’ behavior, but the biggest one is this: The terms of the settlement were undisclosed.
For universities, handling sexual assault — like almost everything — is a matter of money. And so far the suits by those falsely accused — and often falsely convicted, suspended or publicly shamed — have not been expensive or frequent enough to deter schools from these witch trials.
On the other hand, they have plenty of financial incentive to continue. Under a 2011 directive by President Obama’s Education Department Office for Civil Rights, schools were threatened with a loss of federal funds if they did not comply with a variety of questionable procedures when investigating sexual assault claims. As Brookings Institution fellow Stuart Taylor wrote in The Wall Street Journal a few months ago: “These procedures include a virtual ban on cross-examination of accusers, a rushed process making it hard for an accused student to prepare a defense, and a mandate that those found innocent be subjected to appeals by accusers — a form of double jeopardy. The OCR also demands that schools judge guilt on the ‘preponderance of the evidence,’ not the more rigorous ‘clear and convincing evidence’ standard that was often used before, or the ‘beyond a reasonable doubt’ standard that prevails in criminal cases.”
Taylor and others have argued that the Trump administration could change these rules with the stroke of a pen. And Candice Jackson, the top civil rights official at the Department of Education, seemed to be the right person to do the job. Last week she rightly noted: “The accusations — 90 percent of them — fall into the category of ‘we were both drunk, we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’ ”
But Jackson quickly apologized and Trump has made no moves in this direction, which leaves it up to others to make colleges feel the financial pain for the abominable way they have treated these men. Maybe there are a few parents who would think twice about sending their kids to schools with the most egregious problems — Amherst and Yale are two that stand out. But individual tuitions are not enough.
Frankly it’s going to take some big lawsuits to change colleges’ calculations, and that’s why it’s a shame (but not an accident) that the amount of the Columbia settlement was undisclosed. The administration doesn’t want to encourage more plaintiffs to come forward at Columbia or elsewhere.
According to “The Campus Rape Frenzy,” by Taylor and KC Johnson, at least 100 lawsuits have been filed in recent years by students who say they were wrongfully punished by colleges after being accused of sexual assault. But only the wealthiest families have the means to sue. (Nungesser, a scholarship student from Germany, was the exception.) Most students are content if a university simply agrees to expunge the issue from their records. Some cases have been settled, but most amounts remain in the six-figures.
For a school like Columbia with a $9 billion endowment, that’s “the cost of doing business,” says Gail Heriot, who sits on the US Civil Rights Commission. But with the right lawyers and the right cases, even wealthier schools may be sorry. The students involved in the Duke lacrosse case were rumored to have received as much as $20 million each from their (again undisclosed) settlement with the university.
But in order to avoid the bad publicity, many schools are happy to shell out the money. The fact that the University of Missouri’s freshmen enrollment is down 35 percent this year as a result of the riots there in 2015 “show that bad publicity can indeed be hazardous to a university’s health,” Heriot says. Meanwhile, schools that have fewer resources, Heriot notes, “simply cannot afford to be paying out large sums of money to plaintiffs like this.” Perhaps those should be the first targets.
But settlements in and of themselves should not be the goal, says Taylor. “If the right family is ready to fight back hard rather than filing a lawsuit and settling,” he says, “they could take a big university to the mat. You could sue every single member of the administration who was part of case. You could add the woman as a defendant and any activist who participated. Punitive damages could be tens of millions of dollars.” But it would take a very well-off family or an ACLU-like organization with a lot of resources to take on the school’s army of lawyers and go for the jugular — i.e., not settle.
Harvey Silverglate, a civil rights attorney in Boston, notes: “If a case survives a motion to dismiss and goes to the ‘discovery’ phase, the plaintiff is entitled to take depositions to examine college personnel under oath and also to delve into files and records.” Silverglate notes there could be “a lot of embarrassing stuff” there.
Of course, says Taylor, a plaintiff who refuses a settlement and pushes the case all the way to court is taking a gamble that he might not win. On the other hand, he could “become nationally famous as champion of innocent people.” Not a bad way to start life after college.