Campus due process in the courts

About one new due process lawsuit per week was filed last year against a college by a student who had been found guilty of sexual assault by a campus tribunal, despite what the lawsuits claim is strong evidence of innocence. This estimate comes from Samantha Harris, of the Foundation for Individual Rights in Education (FIRE). With the federal government, campus activists and many faculty members and administrators pressuring universities effectively to presume the guilt of accused students, that one-per-week rate has continued into 2017. The most recent lawsuit was filed last week by a former Purdue ROTC student.

Many of these lawsuits continue to work their way through state and federal courts. But there have been more than 50 decisions in lawsuits filed by accused students since the Obama administration mandated in April 2011 an array of procedures designed to produce more guilty findings. The accused student has prevailed in around half of these cases, although generally only in a preliminary motion, followed by a university settlement. This record allows for some generalizations, in what is a surprisingly unstable area of the law. The lawsuits have employed differing theories, involving claims of gender discrimination, due process violations (at public universities) and breach of contract. But at the most basic level, each has asked judges to recognize the depth of the unfair procedures employed by the targeted university.

These decisions come against a long-standing historical background of judicial deference to campus disciplinary judgments, which in the past often involved allegations of academic misconduct. Judges appropriately concluded that professors were better able than jurists to determine what constituted plagiarism or cheating on exams. We doubt, by contrast, that university bureaucrats deserve similar deference when they undertake to decide whether their students have engaged in behavior that's a felony in all 50 states.

The strongest federal appellate win for an accused student was issued unanimously by an all-Democratic-appointed panel of the 2nd Circuit in July 2016. And the biggest appellate loss for an accused came a few months later, from a unanimous 6th Circuit panel that included two George W. Bush appointees.

Those two decisions are bookends for the diverse approaches that different judges have taken to the civil liberties of accused students, mostly males, whose fates are decided by campus authorities. The 2nd Circuit case arose out of a drunken hookup in 2013 at Columbia that led to a sexual assault claim many months later. The accusing student claimed she was too drunk to consent to sex. But the university's investigator ruled out as irrelevant several witnesses who had seen the two students together on the night of the encounter and had said that the accuser appeared able to consent.

Columbia found the accused student guilty and suspended him. He sued, alleging that the university had discriminated against him on account of his gender, in violation of Title IX. U.S. District Judge Jesse Furman conceded that "Columbia may well have treated [the accuser] more favorably than [the accused] during the disciplinary process." But Furman nonetheless dismissed the complaint, reasoning that Columbia might have acted not because of anti-male animus but because it feared that a fair process might lead to a not-guilty finding - which, if leaked to the public, might bring bad publicity. This motive, Furman held, would not violate Title IX.

The 2nd Circuit disagreed. In a July 2016 opinion, Judge Pierre Leval held that "a defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex."

This standard would virtually ensure that any lawsuit by an accused student - at an elite school, at least - can survive a motion to dismiss, because elite schools harbor a well-founded fear that any ruling in favor of an accused student will bring bad publicity. Little wonder, then, that Columbia elected to settle the case, as did Cornell in another pending lawsuit in the 2nd Circuit.

Under the standard outlined by the 6th Circuit, by contrast, it would be extremely difficult for any student accused of sexual assault to win a lawsuit against his university, no matter how dubious the procedures. The decision resolved cases arising out of two separate incidents at the University of Cincinnati. In one case, university officials told the accused student - incorrectly - that "neither party has any burden of proof." Officials also refused to review contemporaneous evidence about the parties' level of intoxication. In the other case, a disciplinary panel allowed an accuser to testify that the accused student was a "rapist" who was "going to Hell" and then flee the room before accepting any cross-examination questions.

This was a clear violation of the school's own rules. But both the district court and the 6th Circuit dismissed the lawsuits. At oral argument before the 6th Circuit, Judge Martha Daughtrey reasoned that students accused of sexual assault at a public institution enjoyed no more rights than if they were before a board of inquiry, an institution most commonly associated with military justice. (Even OCR has never gone this far.) In her opinion, Judge Julia Smith Gibbons observed that hearing that allowed an accuser to testify and then refuse cross-examination might seem problematic, but she reasoned that no due process violation occurred because in an earlier hearing in the case (which led to a finding that the university vacated because of yet other procedural problems), the accused student did submit cross-examination questions. Gibbons reached this conclusion despite conceding that it was "unclear" whether that earlier record played any role in the university panel's deliberation.

At the district court level, the most impressive decision of recent years came from U.S. District Judge F. Dennis Saylor of the District of Massachusetts, a George W. Bush appointee. A bitter breakup of a long-term relationship between two male Brandeis University students led one to file with Brandeis a sexual assault complaint against the other. His former boyfriend's alleged offenses? Sometimes looking at him when he was nude in a shared bathroom; waking him up with kisses, which the university found non-consensual because sleeping lovers cannot consent; and having non-consensual sex with him on the first night of a sexual relationship that was indisputably consensual over the next 18 months.

In violation of Brandeis rules that promised the accused student a hearing, the university turned the case over to a former OCR lawyer and assigned her both to investigate the claim and to determine whether the accused student was guilty. The process did not allow the accused student even to be shown the evidence against him. The guilty finding seemed preordained. This in a case that most people would see as obviously frivolous even if every detail of the accuser's story was taken to be true.

"I don't understand how a university, much less one named after Louis Brandeis, could possibly think that that was a fair procedure to not allow the accused to see the accusation," Saylor noted during oral argument in November 2015. His March 2016 ruling allowing the case to proceed held that Brandeis "appears to have substantially impaired, if not eliminated, an accused student's right to a fair and impartial process. And it is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a 'victim' is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning."

The most recent due process ruling came last month, in a case at James Madison University. In the university's original hearing, the accused student was found not guilty of taking advantage of an extremely drunk woman, after testimony by the accuser's roommate that she had seemed quite sober that night. But the accuser was allowed to appeal, as required by the Obama administration's 2011 guidance. After considering new information added by the accuser without giving the accused student a chance to respond, a three-professor appeals board overturned the original decision.

This new material included a statement from a suite-mate that the accuser's roommate's testimony in the initial hearing - which portrayed the accusation as a lie - was itself a lie. The appeals board never gave the roommate a chance to defend her own veracity and the accused student's innocence. The appeals board also gave weight to a newly introduced voicemail in which the accuser sounded very drunk and thus unable to consent to sex. But in fact, the voicemail was recorded the night before the alleged assault. The accused student could have proved this, but was never given a chance to do so. U.S. District Judge Elizabeth Dillon of the Western District of Virginia, an Obama appointee, concluded that "no reasonable jury" could find this process "fundamentally fair."

Despite the cost and time burdens of a lawsuit, wrongfully accused students have considerable incentive to go to court, although only those from relatively wealthy families can afford to sue. As U.S. District Court Judge T.S. Ellis III noted in reversing a finding of sexual assault by George Mason University, the university's decision has life-altering consequences. If an accused student, Ellis observed, "seeks education or employment with institutions or organizations that require disclosure of such records, [his] only options are to forgo opportunities with those institutions or organizations or to authorize the dissemination of records that would likely foreclose [his] ability to pursue such opportunities because of the allegedly defamatory nature of the records."

As a rule, universities have quickly settled if they lose a motion to dismiss. While a couple of accused students (at Georgia Tech and Montana) have received low six-figure settlements, most only ask for what a university can easily give: an expungement of his disciplinary record, to prevent the fate that Ellis outlined. Universities can concede this with almost no cost. For this reason, a lawsuit from a wrongly accused student entails far less risk than being sued for a large damages award by an accuser, especially given public relations concerns. Thus do universities' relative litigation risks reinforce guilt-presuming procedures that were adopted for other reasons.

A handful of universities have fought on even after losing a preliminary ruling. One such institution is Brown, the defendant in the first trial of an accused student's lawsuit after the Obama administration's 2011 "Dear Colleague" letter. Tomorrow's post will focus on that trial.