Suits From the Accused

He described the night as a consensual, Ecstasy-fueled threesome. She described it as a sexual assault.

Reed College agreed with the female student’s version of the events, in which she said she was coerced into having the encounter, and kicked the male student off campus. Now he’s suing the college, alleging that Reed engaged in “a series of arbitrary, discriminatory and illegal actions” to ensure a predetermined outcome: his expulsion.

Because the alleged assault took place during a threesome, the encounter has a built-in witness for the accused, the lawsuit states. The third member of the coterie, who was also a woman, told the college that the accuser was both “fully aware” of her surroundings and “totally into it.” Reed ignored this testimony, the accused student argues, and expelled him anyway.

The detailed lawsuit may illustrate just how creative and graphic some men have become in bringing suits. But if the accused student wins his case, he’ll be in rare company. Male students accused by their colleges of sexual assault are increasingly turning to gender discrimination and bias lawsuits to fight for exoneration, with many of them citing their colleges' obligations under Title IX of the Education Amendments of 1972 -- the same civil rights law meant to protect victims of sexual violence.

Most accused students lose that battle, but yet another avenue has recently opened up with a handful of accused students' cases now being investigated by the U.S. Department of Education's Office for Civil Rights. And some men are forcing colleges to back down with lawsuits that focus more on due process and violations of colleges' own rules than they do on gender bias.

“These Title IX suits are not faring well so far, but all it takes is one good win with the right set of facts and the right attorney, and a whole new venue of litigation will open up,” said Brett Sokolow, the president of NCHERM Group, a risk management firm that works with colleges. “I’m not ready to say that these suits hold no hope, but I am seeing campuses readjust their approaches to ensure fairness for all, which should quiet the need for such suits, over time.”  

Some legal scholars express growing concern that colleges are trampling the due process rights of accused male students amid a renewed push to end campus sexual assault. There are at least 68 pending lawsuits alleging gender bias by accused students, many of them filed in the last two years.

Though a few cases have seen success in the way of pretrial settlements, including recently at the University of Colorado at Boulder, Swarthmore College and Xavier University in Ohio, many more have been dismissed outright. In the case at Colorado, the accused student said the university did not advise him of support services and did not investigate key witnesses. The university said it only settled to avoid the cost of a lawsuit.

Two cases dismissed in the last month, against Columbia University and Vassar College, demonstrate how difficult it usually is for accused students to successfully argue that gender bias led to their expulsions.

At Vassar, an expelled student named Peter Yu alleged that a bias against men led the university to commit several procedural errors during the investigation and hearing process of his case. A federal court rejected the claim that Vassar had erred in its procedures and said it found no evidence that a gender bias existed that would cause such errors.

Yu and the student who accused him of assault gave Vassar vastly different accounts of their encounter. In Yu's version, both students had been drinking but the act was consensual, with the female student gently guiding Yu, who said he was a virgin, through the process. In the female student’s version, she never agreed to have sex with him and she was so intoxicated that other students who saw her that night were worried about her safety.

Yu argued that the university’s policies are unfair, as students who are incapacitated by alcohol cannot consent to sex, but an equally drunk student can be found responsible for sexual assault.

It’s a policy that is increasingly common at colleges and universities, and its fairness continues to be debated. The blame, however, is not automatically assigned to the male student, but to the student who is thought to have instigated the sex. In other words, if two equally incapacitated students have sex, the student who made the first move is to blame.

(A recent alleged assault at Occidental College is a prime example of this type of case. Both students said they were blacked out, but a trail of text messages shows that while both students were seemingly consenting in the moment, it was the male student who first asked to have sex. The male student, who was expelled, is suing the college.)

The court decided in Yu’s case that even if such a policy is unfair, it is not biased against one gender or the other. The policy as written at Vassar is decidedly gender neutral. The university has never dealt with a case against a female student, so Yu was unable to prove that the policy treated male and female students differently.

A court reached a similar conclusion in the recently dismissed case against Columbia. The student's lawsuit argued specifically that because Columbia has faced significant backlash in the last year over the perception that the university was too lenient on men accused of assault, the university treated the accused student unfairly and more harshly because of his gender. The university’s policies do seem to impact male students more than female, the court said, but the policies themselves aren’t to blame as they are also written to be gender neutral.

The impact on male students is not because of a policy, the court concluded, but because men are typically accused of sexual assault far more than female students.

“It may well be that a desire to avoid Title IX liability to the alleged victims of sexual assault or an effort to persuade the DOE and others that it takes sexual assault complaints seriously caused Columbia to ‘maladminister’ Plaintiff’s disciplinary hearing, as he alleges,” the judge wrote. “But that is not discrimination against Plaintiff because of sex. At most, the complaint identifies inadequate procedural protections provided to students accused of sexual assault -- and behavior by campus officials towards such students more generally -- that have the effect of burdening men more than women, given the higher incidence of female complainants of sexual misconduct versus male complainants of sexual misconduct.”

Title IX does not provide a way to challenge disciplinary policies simply based on disparate impact, however, she wrote.

According to Charles Wayne, a Washington lawyer who has represented accused male students, only a handful of claims have ever survived colleges’ attempts to dismiss the cases. And they survived not because of Title IX claims, but despite them. Typically lawsuits filed by accused students don’t rely just on Title IX and gender bias for their argument, Wayne said. The lawsuits often also include claims of negligence and breach of contract.

Those two claims formed the basis of a lawsuit that resulted in a win for Wayne and an accused student in 2011. The case is widely believed to be the only one in recent memory to make it to court and have a favorable outcome for an accused student.

The accused student alleged that the University of the South did not follow its own published procedures regulating hearings, thereby violating the “good faith and fair dealing” agreement the university entered into when it accepted the student’s tuition dollars. The lawsuit stated that the university didn’t provide proper notice of the hearing procedure; conduct an adequate, impartial and reliable investigation; or allow for the presentation of witnesses and other evidence. The dean of students, Eric Hartman, reportedly gave the accused student about a day's notice of the hearing and the charges against him. That was three weeks after the woman formally complained to the university. The university's policies say the accused should be notified no more than five class days after the formal complaint is received.

The court ruled that the university did not follow its own policies, though it awarded the student far less than the $3 million he asked for, essentially just reimbursing his tuition.

Despite the difficulty of proving Title IX claims, accused students and their supporters are doubling down on claims that they were discriminated against because of their gender. Some are even deciding against lawsuits entirely and turning instead to the Department of Education’s Office for Civil Rights.

OCR is investigating more than 100 colleges for mishandling sexual assault claims under Title IX, according to the public list kept by the department. Since 2011, the statute has been OCR’s weapon of choice for combating campus sexual assault. The vast majority of the inquiries are into whether female students’ sexual assault claims are being investigated and adjudicated properly.

At least three current OCR investigations now concern the opposite side of that coin -- the idea that universities are violating the civil rights of accused male students in overzealous attempts to stay off OCR’s list.

Accused students and their families said they have opted for the OCR route because they're not interested in the monetary damages a lawsuit could bring; they only want to prove their innocence. But lawyers said if a student has been falsely accused, they won't easily find justice through the Education Department, either. After all, the rules colleges are meant to follow -- such as using “preponderance of evidence” instead of “beyond reasonable doubt” as a standard of proof -- were handed down from the department.

“It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable and its application to sexual assault should be repealed," Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, wrote in an analysis of the recently dismissed cases. "If that is the strategy, however, it does not seem to be working so far.”