By Jeannie Suk Gersen
More than twenty-five years ago, alleged rapists’ names were scrawled in bathroom stalls at Brown University. These signs of outrage accompanied campus activists’ demands to improve sexual-offense policies and training for male students. Change was slow, but five years ago the Obama Administration began to take an active role in combatting campus sexual violence. The Education Department’s Office for Civil Rights announced that Title IX’s ban on sex discrimination in education means that schools that receive federal funding (practically all colleges, universities, and school districts) must have effective policies and procedures for resolving sexual-violence complaints. In 2014, O.C.R. posted a list of higher-education institutions that were under federal investigation for possible violations of Title IX in their handling of sexual violence and sexual harassment. According to the Chronicle of Higher Education, that list (which included Harvard Law School, where I teach) has grown in the past two years, from fifty-five schools to almost two hundred and thirty, public and private, large and small, from all regions of the country.
The government set out some requirements for schools, the most specific being that they must use “preponderance of the evidence,” instead of a higher standard of proof, to determine an accused student’s responsibility for sexual misconduct. But, for the most part, schools developed new policies themselves; under the threat of losing federal funds, many did even more than what was required. Some schools chose not to give accused students the complaint against them, notice of the factual basis of charges, the evidence gathered, or the identities of witnesses. Some barred counsel from attending hearings or disallowed counsel from speaking at hearings. Some prohibited the accused from asking questions of the accuser or witnesses, even through intermediaries; often the accuser participated in hearings behind a partition so that she would not see or be seen by the accused. Even when found responsible for sexual misconduct, the accused was sometimes not allowed to have a copy of the investigative report. As the first rounds of students have been disciplined for sexual misconduct under the new procedures, scores of them have gone to court to protest their schools’ decisions. The suits, against schools such as Yale, Cornell, and the University of California, San Diego, have alleged that, under intense pressure to be tough on sexual assault, the schools violated basic fairness to accused students. Most remarkably, many of the suits have claimed that the new procedures, which were developed to protect the Title IX rights of sexual-assault victims, in practice violate the Title IX rights of the accused.
In April, 2015, Columbia University’s motion to dismiss one such lawsuit was granted by a federal district court in New York, which seemed to spell doom for these kinds of claims. But, last week, a unanimous Second Circuit appeals panel reversed that decision and held that the accused student could go forward with his claim that the university subjected him to sex discrimination in violation of Title IX. The case will go back to the lower court for trial proceedings, unless Columbia settles with the student, who is seeking damages and wants his disciplinary record scrubbed. Across the country, state and federal courts have recently decided for other accused students who claimed that their schools’ procedures were unfair. Last August, in a case against Washington and Lee University, a federal court in Virginia found that the plaintiff had “plausibly established a causal link between his expulsion and gender bias,” and that his claim could go forward. (The school settled with the student.) In February, another Virginia federal court ruled that George Mason University, a state school, had violated constitutional due process by reversing a decision, which was originally in a student’s favor, without explanation or notice of some of the factual allegations for which he was expelled.
The Columbia case is not much different from the others, but it is the first federal appellate decision of the crop. According to his court complaint, the accused, a freshman varsity athlete, was studying in a residence hall in May, 2013, when he was approached by a female student who was in his circle of friends. The two took a walk, returned to the residence hall, discussed hooking up, and then went to the bathroom of her dormitory’s suite instead of to his suite, at her suggestion, because his roommate was her ex-boyfriend. He waited in the bathroom while she went to get a condom, and they had sex. Afterward, she expressed concern about what their friends would think about their encounter, according to the male student. (The female student’s account of the incident is not public.) Four months later, she filed a complaint with the university; nine months after the incident, he was found responsible for non-consensual sexual intercourse, with the non-consent later attributed to his “unreasonable pressure” in the weeks before the sexual encounter. He was suspended for two and a half semesters, which the accusing student herself appealed as too severe.
While Columbia was investigating the female student’s claim, it was also facing public criticism from students, who argued that the university had been overly sympathetic to male defendants in sexual-misconduct cases. In December, 2013, the New York Post wrote that, according to female students, a Columbia athlete who had raped several women was “still walking around like a big man on campus because the school dropped the ball on investigating him.” In 2014, the same year that Columbia adjudicated the complaint against the freshman athlete, twenty-three students filed complaints with O.C.R. alleging that Columbia mishandled sexual-misconduct cases. That May, it was widely reported that Columbia students were, as at Brown decades before, writing the names of alleged rapists on bathroom walls. Starting that September, the Columbia student Emma Sulkowicz’s performance-art piece “Mattress Performance (Carry That Weight),” which protested the university’s failure to find her alleged rapist responsible for sexual misconduct, galvanized Title IX activism on campus and around the country.
The freshman athlete’s lawsuit claims that Columbia’s decision to discipline him was motivated by anti-male bias, which came partly out of its desire to appear more responsive to female students’ claims. He alleges that the Columbia investigator and decision panel did not seek to interview the witnesses he identified as favorable to him, did not follow the university’s own procedures, and reached conclusions contrary to the weight of the evidence. The appeals court, in turn, found it “entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault.” Significantly, the appeals court rejected the idea that the university’s actions, if motivated by fear of Title IX liability or negative publicity, would be lawful and distinguishable from unlawful sex discrimination against accused students. A university that is trying to avoid one form of sex discrimination may still be committing another.
In addition to the Title IX cases, other accused students have claimed that schools’ denial of basic fairness in the discipline process breached their contractual relationship with students. Earlier this year, a federal district court in Boston denied Brandeis University’s motion to dismiss such a contract claim by a student who had been disciplined for sexual misconduct. Many other courts in the past year have allowed similar claims to survive schools’ motions to dismiss. And, this month, a federal district court in Rhode Island has been hearing a trial in a breach-of-contract case in which a student suspended for two years for sexual assault alleges that Brown University applied an affirmative-consent policy to an incident that occurred before the policy was enacted. Brown concluded that the male student obtained a female student’s consent through “manipulation,” pointing to text exchanges before the sexual encounter that included her saying he was trying to manipulate her, and his response, “I’m trying to manipulate you a lot.”
The schools in these cases must feel themselves to be in an impossible position. On the one hand, they must take sexual assault seriously and remedy their previously neglectful handling of claims. Not doing enough means risking a federal Title IX investigation, with the threat of losing federal funding. (Because of the threat of defunding, schools could even be said to have a financial stake in the outcomes of the cases they decide—a possible conflict of interest.) But, when schools do too much, they face potential lawsuits from accused students for violating, among other things, Title IX. When it comes to sexual-assault cases, campus administrators could be forgiven for feeling on a knife’s edge. (Suzanne Goldberg, Columbia’s executive vice-president for university life, wrote in an e-mail, “Although litigation is an ongoing part of the landscape for any college or university, the focus of many higher-education institutions, including Columbia, remains on handling each incident carefully and fairly as well as on preventing incidents in the first place.” She declined to comment on any individual cases.)
Last month, the Republican Party platform, in a section devoted to Title IX, stated that “sexual assault is a terrible crime” that must be “prosecuted in a courtroom, not a faculty lounge.” The platform went on to object to the Obama Administration’s approach, saying that its “distortion of Title IX to micromanage the way colleges and universities deal with allegations of abuse” must be stopped before it further “prevents the proper authorities from investigating and prosecuting sexual assault effectively with due process.” While tempting, the “due process, not campuses” position represents a false choice. There are major procedural-fairness problems in schools’ handling of sexual-assault complaints, but due process is possible outside the court system. The Democratic Party platform, which included a pledge to fight sexual assault on campuses, made a point of promising “fair process for all in campus disciplinary proceedings,” which seemed to acknowledge that the treatment of all parties must be brought into balance.
Schools that receive federal funding must conduct their own investigations of sexual-assault allegations, regardless of whether police are investigating. Even if a future Presidential Administration has a different reading of Title IX, there is little chance that schools will get out of this business: it is impractical not to be able to discipline community members for violating schools’ own codes of conduct, whether or not the violations are also crimes to be pursued by law enforcement. Amid growing awareness and support for campus sexual-assault victims, we have now also embarked on a course correction on procedures for hearing cases, with our courts providing a check on pressures to trample fairness for the accused. Will this eventually lead schools to an equilibrium of fair procedures? I hope so. The court cases against Columbia, Brandeis, Brown, and other schools are part of a long-term story in which we will likely reform the current procedural disasters on college campuses, which have received legitimate criticisms by both accusers and accused students.
This article was originally published by The New Yorker on August 5, 2016