Students accused of sexual assault are suing colleges — and winning most of the time
Nearly a year after having what he claimed was consensual sex and she claimed was assault, the two Aquinas College students were back together, this time separated by a curtain.
For 50 minutes, they appeared in front of a panel of employees of the college in Grand Rapids, Michigan. In a 10-minute opening statement, the male student defended himself against charges he had sexually assaulted the female student. The female student offered no opening statement.
A few questions from the panel later, the hearing was done. Six days later, the male student was expelled.
Ten months later, he filed a federal lawsuit. Several months after that, Aquinas settled the lawsuit. Those involved are barred from talking about the case by the agreement.
In suing, the Aquinas student joined a growing tide of male students, accused of sexually assaulting fellow students, who have lodged federal lawsuits against their schools, alleging discrimination and violations of their due process rights.
Despite the continued heat of the #MeToo movement that has brought down celebrities, politicians, business leaders and religious leaders, the male students are finding success in the court system.
In 2011, then-President Barack Obama's administration urged universities to take more action on sexual assault complaints.
Since then, universities have lost more decisions in these lawsuits than they have won, according to an analysis of federal court filings. Most of the losses are judges deciding against universities' motions to dismiss the cases.
"It's the end of the beginning," said Andrew Miltenberg, an attorney with Nesenoff & Miltenberg who represents accused students, including a trio suing Michigan State University. "We're seeing, for the first time, in the last year or so, that courts are starting to embrace the concept that there could be due process issues. Others are not. We don't have a big jury case yet."
Several hundred cases have been filed in the last eight years, with the pace picking up in recent years. Now a case is filed every two weeks or so, experts said.
The losses share a problem, said KC Johnson, a professor at Brooklyn College and the co-author of "The Campus Rape Frenzy: The Attack on Due Process at America’s Universities." Johnson has tracked the cases and provided the Free Press with his database of cases and outcomes.
"One commonality is the lack of cross-examination," he said. "Courts are saying each side should have the opportunity to question each other."
Big universities including the University of Southern California, Penn State University and Ohio State have lost. Smaller schools, including Hofstra University, Boston College and Claremont McKenna College have also been on the losing end of decisions. Another group of schools, including Northwestern University, Dartmouth College and Yale have settled lawsuits.
Universities, even when reaching a settlement, aren't paying out large amounts of money to those accused students who are suing them. They are often, instead, expunging findings, giving clean transcripts or degrees, multiple lawyers said.
Many decisions are now being appealed. At least one federal appeals circuit has already weighed in, with others likely to do so in the coming months. Many believe a U.S.Supreme Court case is the likely end point sometime in the next two to five years.
One of the people paying attention to the court rulings is U.S. Education Secretary Betsy DeVos, who has proposed new regulations for how colleges handle sexual assault. Among the regulations — live hearings with cross-examinations.
The cases have often sent the students back to the university with orders to redo the investigation under procedures that correct due process flaws.
That's difficult for sexual assault survivors, said Laura Dunn, a sexual assault survivor and attorney.
"They have to go and sit through it all again and relive the whole experience."
Miltenberg said he hasn't seen any slowing of accusations.
"I still think there's a lot of confusion out there on what needs to be done" by universities, he said. And there was a need for courts to step in because "universities, on their own, weren't going to get (to fair due process) on their own."
Case study: University of Colorado-Boulder
William Norris was six credits short of graduation and a career in the Air Force when he was suspended from the University of Colorado-Boulder on accusations of sexually assaulting a female student.
In January 2016, an unnamed female student filed a report with the Boulder Police Department that she was sexually assaulted in July 2015 and that, in spring 2014, Norris touched her genitals without her consent. That allegation was shared with the school. Both the police and the school launched investigations.
Shortly after, a university investigator emailed the female student: “No time limits on our side, so if at any point you would like to speak with me about the incident, I am available to meet or speak to you by phone," according to a federal lawsuit. "The email further informed Jane Roe (the student) that her participation in the process was optional and provided her with options for 'advocacy and support.' "
Norris was notified a couple of days later and given two days to find an adviser and set up a meeting with the university investigator, according to the lawsuit. The lawsuit also claims he was told that if he didn't respond, the university could continue the process without him.
Throughout the process, the lawsuit claims, the accuser was given leeway in deadlines and access to information about the investigation, whereas Norris wasn't. He was allowed to review the investigator's report, but only in the office and with a university official sitting in. He couldn't make copies. Multiple witnesses supported his version of events, the lawsuit states, but the witnesses were ignored. Norris is represented by Miltenberg.
During the time of the investigation, then-Vice President Joe Biden appeared on campus as part of a week-long anti-sexual assault campaign. The lawsuit claims Biden's appearance increased pressure on the university to find against male students.
There was no hearing. The university's conduct officer found the female student more credible and suspended Norris for 18 months, banning him from campus during that time. At the same time, a jury acquitted Norris of all charges stemming from the complaint.
"CU Boulder’s investigation and adjudication of Jane Roe’s allegations were tainted by gender bias resulting from federal and local pressure to protect female victims of sexual violence, and to reform CU Boulder’s policies to take a hard line against male students accused of sexual misconduct," the lawsuit states. "As a result, Plaintiff was deprived of a fair and impartial hearing with adequate due process protections, as mandated by the United States Constitution."
A federal judge agreed there was enough evidence to continue the case, defeating a motion to dismiss by the university. The judge cited the growing case law around due process claims and said: "The lack of a full hearing with cross-examination provides evidence supporting a claim for a violation of his due process rights."
Growing number of lawsuits
In 2011, the Obama administration issued what became known as the "Dear Colleague" letter, demanding colleges up their game when it came to sexual assault complaints. More sexual assault survivors filed complaints with the federal government alleging their universities hadn't handled their complaints properly.
The federal government cracked down on schools, including pre-Larry-Nassar-scandal Michigan State, which the government said had bad policies that contributed to a sexually hostile environment.
Schools also switched to a single-investigator method and trauma-informed processes. The single-investigator model works by having a single university employee or outside expert interview the accuser, the accused and any witnesses separately and then write up a report. Both sides often have a chance to review the report, but can't ask each other or witnesses questions.
But as the model of investigation changed, complaints started to rise that universities had swung the pendulum too far and were going into the process thinking the male students were guilty even before gathering the evidence.
Since the "Dear Colleague" letter, there have been more than 330 federal cases in which some action has been taken. As of April 11, universities have lost 140 decisions, mostly motions to dismiss the lawsuit. They've won 126 times. They have ended cases with confidential settlements 65 times.
Those numbers don't count the cases filed and still working through the system. The estimate is one federal case is filed every two weeks. That also doesn't count cases filed in state court systems.
"A lot of these university policies are hard to defend," Johnson said. "Universities ... are very slow to respond to adverse rulings and make changes. That just leads to more cases."
Case study: University of Michigan
Perhaps the most cited recent ruling in court cases is a lawsuit stemming from the University of Michigan and an appeals court ruling.
The case the appeals court was considering centers on a sexual encounter at a fraternity party. The male student was eventually thrown out of school.
The student then sued U-M, alleging his due process rights weren't granted. A lower court ruled against him, but he appealed.
His argument was that the university already gave students accused of every other type of misconduct the right to a hearing and cross-examination.
In its ruling, the court of appeals bought that argument.
"If a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser," the court wrote.
"Due process requires cross-examination in circumstances like these because it is 'the greatest legal engine ever invented' for uncovering the truth."
The impact of the cases
As a sexual assault survivor-turned lawyer, Laura Dunn has seen the legal system from both perspectives. She currently represents other sexual assault survivors, including in lawsuits they file against universities.
Those cases can be tough to win because civil rights violations have to show deliberate indifference.
Educating judges on those legal standards and how universities didn't meet them can be a challenge.
On the other hand, she says: "The staples of due process are very well understood."
But maybe not so by universities, said Justin Dillon, a former federal prosecutor whose Washington, D.C., firm KaiserDillon represents accused students.
"The reason for the number of cases and wins is sort of simple — schools rushed to implement a bunch of questionable processes," he said.
It took a while for cases to develop and work through the legal system, sort of a lagging indicator that there were problems with how universities were handling the accusations.
Students getting expelled for sexual assault accusations felt branded and that they would suffer reputation harm that would last well past college. So when they saw flaws, they began to sue and courts began to question procedures.
That's led to some good, Dunn said, noting she's not a fan of the single-investigator model.
Universities are definitely aware of the court trend, Miltenberg said. He is finding he can draft a complaint listing a number of issues, present it to the university before filing and have universities tell them to slow down the process and work with them to get a fair hearing.