Students accused of sex assault are challenging disciplinary process at South Carolina colleges

Emboldened by the federal government, South Carolina students accused of sexual misconduct are taking colleges to court over disciplinary procedures they call unfair.

At least two schools, the College of Charleston and Coastal Carolina University in Conway, have been sued in recent weeks after President Donald Trump's administration relaxed guidelines designed to target indifference to campus sex crimes. Critics said the policy had come at a cost to suspects' civil rights because its low burden of proof bred false accusations.

The move created fodder for students to attack the system in hopes of staving off disciplinary measures until the government adopts a permanent, more favorable policy. But representatives of colleges in the Palmetto State — including the University of South Carolina, Coastal and the College of Charleston — said they are sticking with their current process.

Tommy Brittain, a Myrtle Beach lawyer for a student at the center of the Coastal Carolina case, said the lawsuits are likely just the beginning of a push against a disciplinary process that can plague students forever.

“The policy is a complete mess,” he said. “It’s an absolute nightmare. A guilty finding is not like a violation of a little school rule. It’s a life-changing decision.”

But to advocates and school officials, the system simply aims to create a safe campus environment. And because they don’t face jail time, accused students shouldn’t expect to have the same rights during administrative proceedings as they do in criminal courts, lawyers added.

Though a spokeswoman would not comment, Coastal Carolina attorneys Katherine Brooks and Timothy Meacham said in court filings that a suit to stop disciplinary hearings “could have a chilling effect,” halting people from reporting future violations.

“(It) would be an extraordinary measure, the first of its kind,” they said, “and would substantially interfere with Coastal Carolina University’s duty to ensure a fair process.”

'No need to overreact'

The courtroom battles have emerged since Betsy DeVos, Trump’s education secretary, rescinded guidelines established in 2011 under President Barack Obama. She stressed the need to balance the rights of the accused with their accusers.

DeVos stopped short of mandating changes but ordered a review in which her Department of Education would hear public opinions. A permanent policy could surface months from now.

Colleges have been using a “preponderance of the evidence” standard for judging guilt, which essentially requires a 51 percent likelihood that an accusation is true.

DeVos’ interim measures allow schools to heighten that standard to “clear and convincing” evidence of guilt, which is still lower than the “beyond a reasonable doubt” requirement of criminal courts.

Daniel Carter, president of the Georgia-based Safety Advisors for Educational Campuses, said some critics saw DeVos’ move as beneficial to suspects.

Carter said he and his colleagues have advised schools not to make any changes yet. But care is still needed to ensure everyone’s rights.

“Some schools were taking shortcuts around the guidelines, creating unfair proceedings,” he said. “There’s no question there were issues, but there’s no need to overreact.”

But in early October, within two weeks of DeVos’ announcement, a student sued the College of Charleston in hopes of ending its investigation of him.

The young man, named John Doe in the federal suit, belonged to Pi Kappa Phi fraternity in April when a sorority member accused him of forcing her to have sex after a party. The suspect pointed to his text messages with the young woman as evidence that their rendezvous was consensual.

“I literally did not do anything that you didn’t want me to do,” he told her, the court filings showed. “I asked you multiple times.”

She said, “I appreciate you being straight up with me.”

She filed a complaint.

Though Charleston police didn’t find enough evidence for a criminal charge, the college continued its disciplinary probe.

'Subject to challenge'

The student's lawsuit said the ordeal has humiliated him and stymied his career. The Obama-era guidelines, it argued, made schools fear a government investigation for violating Title IX, the law governing how campus sex assaults are handled.

“It has led to problems such as de facto presumption of guilt,” stated the lawsuit filed by Charleston attorney Stephen DeAntonio.

DeAntonio, as well as school spokesman Mike Robertson, declined to comment on the pending matter.

But Cleveland lawyers Kristina Supler and Susan Stone, education law experts assisting DeAntonio, said the process needs a higher burden of proof, especially when the result can be a “modern-day scarlet letter” for students. The old guidelines were an “extreme response” to a sex assault crisis that ran roughshod over human rights, Supler said.

“Our goal is to make sure that the rules ensure a fair process,” Stone added. “It’s essential that everybody’s rights are protected. Hopefully, those policies are revised.”

The status quo has largely prevailed in the meantime.

Eugene Matthews, a Columbia attorney for the 11,000-student college, said in a motion to dismiss the suit that the federal rules still require schools to investigate, regardless of police action. The student’s allegation that the process is unfair to men like him is “ridiculous,” the motion stated.

At the 10,000-student Coastal Carolina University, the central issue is similar.

But in that case, the young man was arrested in May on a charge of third-degree criminal sexual conduct during a drunken encounter with a fellow student. But his attorney said it was clear that both students knew what they were doing.

Brittain filed the suit in Horry County court to prevent the school from holding a disciplinary hearing in late October. He had also represented the son of former NFL player Ray Lewis in a Coastal sex case that was eventually dropped.

But the university’s in-house lawyers persuaded a judge not to intervene, Brittain said, and the student was suspended.

“This whole process is subject to challenge,” Brittain said. “Not only is it wrong, but the government now realizes it’s wrong.”

The student plans to appeal.

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