Acting out of school

A well-meaning effort to make college campuses safer may have spawned harsh procedures and penalties that ignore basic guarantees of fairness, some ad­vocates are saying.

While many have welcomed campus changes that protect victims of sexual violence, others say some schools have gone too far and ignore the rights of the accused.

Recent rulings in Virginia underscore their point, with three different federal judges criticizing how universities han­dled discipline cases against male stu­dents accused of sexual misconduct.

In one of those cases, the judge ruled on the pleadings that a student’s disci­pline appeal was handled unfairly. He ordered George Mason University to re­instate the student and barred further appeals of the initial charge.

In two other cases, judges expressed disapproval of how schools allegedly handled misconduct claims against male students. One of those cases, against Washington & Lee Universi­ty, settled out of court. A suit against James Madison University is pending.

Virginia is hardly unique. Across the country, colleges report a wave of lawsuits from men accused of sexual violence alleging they were railroaded without basic procedural protections. In at least 10 cases in the past year, the complaining students have won court victories against schools, according to a published report.

The genesis of the latest trend is a 2011 U.S. Department of Education policy statement that set ground rules for schools in dealing with sexual ha­rassment.

The DOE’s so-called “Dear Col­league letter” mandates school action when a student complains of sexual harassment, requires a preponder­ance standard for proof and “strongly discourages” allowing the parties to cross-examine one another during dis­cipline hearings.

The guidance document – backed by the threat of loss of federal funding – also requires that either party in a sex­ual misconduct case be allowed to appeal.

Three Virginia judges questioned the fairness of resulting procedures.

George Mason case

The student who sued George Mason University – typically identified only as “John Doe” – prevailed in the only such case decided on summary judgment, ac­cording to his lawyer.

Doe had been in a consensual rela­tionship with his accuser that involved “BDSM” sexual activity. The accuser claimed Doe had, on more than one oc­casion, violated their understanding for withdrawal of consent.

Judge T.S. Ellis ruled last month that the school violated Doe’s due process rights by allowing evidence of incidents beyond those identified in the charges, by allowing an appeal without a proper ba­sis under the rules and by denying Doe’s opportunity to mount an effective appeal defense. Doe – who had been expelled – was ordered reinstated.

This month, Ellis barred GMU from beginning new disciplinary proceedings based on the incident of the first hear­ing. The judge gave the school 60 days to pursue any disciplinary charges based on later incidents.

Ellis’ April 14 ruling on Doe’s remedy is Doe v. GMU (VLW 016-3-176).

“We’re glad he did not give George Ma­son a do-over with respect to the initial charges,” said Doe’s lawyer, Justin Dil­lon of Washington. “We wish he had not allowed the accuser a second bite at the apple,” he added.

A GMU attorney did not respond to re­quests for comment on the case.

James Madison case

Appeal procedures also came under scrutiny in a student’s lawsuit against of­ficials at James Madison University. U.S. District Judge Elizabeth K. Dillon ruled in March that the “John Doe” plaintiff in that case would not be shut out on a mo­tion to dismiss.

Under the facts recited by Doe, Dillon said JMU “severely limited his ability to defend himself” on his accuser’s appeal of his initial exoneration.

Among the allegations: The school did not give Doe sufficient time to respond to new evidence and did not give him ad­vance notice of the appeal board hearing. He was not allowed to attend that hear­ing.

By contrast, Doe’s accuser was allowed extra time to submit documents, includ­ing a statement from a support person. The school’s policy prohibited such testi­mony or evidence from support persons on appeal.

Without any live testimony or argu­ment, the appeal board reversed the earlier decision in Doe’s favor. The board gave no explanation for the reversal or its decision to suspend Doe for five-and-a-half years.

Dillon ruled that Doe stated a proce­dural due process claim based on a prop­erty interest in his continuing enroll­ment.

Dillon’s March 3 decision is Doe v. Al­ger (VLW 016-3-164). Doe is represent­ed by W. David Paxton of Roanoke. The JMU defendants are represented by the attorney general’s office. Cross motions for summary judgment will be the next step in the case.

Washington & Lee case

The due process requirements that ap­ply to public colleges and universities do not automatically apply to private insti­tutions.

As a private school, Washington & Lee University avoided exposure for a due process claim in a similar “John Doe” stu­dent complaint in August. Judge Norman K. Moon ruled Doe’s Fifth Amendment due process claim would not survive a motion to dismiss.

Doe nevertheless was allowed to pro­ceed on a Title IX claim that his expul­sion was a result of improper “gender bias” aimed at male students accused of misconduct.

Moon said the plaintiff alleged “a host of flaws in W&L’s handling of his case,” but he ruled Doe had to meet the Title IX standard to go forward. After a discovery battle was decided in favor of the school’s privilege claims, the case was settled in February on undisclosed terms.

Public-private distinction

For a disgruntled student, success in court could turn on whether he attends a public or private college.

R. Craig Wood of Charlottesville – who represented W&L in the settled “Doe” case – pointed out that private schools generally are not subject to the constitu­tional due process standards that apply to public institutions.

And in pure Title IX gender bias cases, courts have sided with institutions “time after time,” Wood said.

Richmond lawyer W. Coleman Allen Jr., who represents a female plaintiff in another lawsuit against JMU, agreed that Title IX’s “deliberate indifference” standard is a tough hurdle.

“If it were ‘reckless indifference,’ that would be difficult enough,” Allen said. “‘Deliberate indifference’ – that is a very high standard to be met,” he said.

A search for balance

College administrators might be forgiv­en for thinking they have targets painted on the backs of their academic robes.

“I think they feel that way,” said Wood, who has represented and counseled school officials on Title IX issues. “It’s become very much a political issue,” he said.

Colleges care deeply about their rep­utations and strive to be in compliance with the federal standards, Wood said.

“What I find is confusion between the real world of how students behave and the preconceived world of what policy makers believe the world should be,” he said.

Wood took issue with the federal re­quirement of a mere preponderance of evidence standard in misconduct cases.

“Most of these cases are ‘he said-she said’ cases. Nobody else was in the room,” Wood said. Most involve alcohol consump­tion by the parties, he said. The issue of consent turns entirely on credibility.

To put the accused student at risk of legal and professional hardship on such a slim standard seems unwarranted, he said.

“Are these going to be kangaroo courts or real, fair, properly adjudicatory hear­ings?” he queried.

“I think that strict adherence to the [Dear Colleague letters] makes it more difficult to have a rigorous test of the truth,” he said. “Certain things required by the DCLs you would rarely see in a traditional court room,” Wood continued.

He noted the requirements by some colleges for screens that block a witness’ view of an adversary during cross-exam­ination. Defendants facing a Class 1 mis­demeanor get more protection in general district court than an accused under the DCL, Wood said.

Dillon, the lawyer for the GMU plain­tiff, acknowledged the tension for college administrators under the DCL dictates.

“I hope the pendulum is starting to swing back toward due process,” Dillon said, but he admitted to cynicism about the prospect. He said protection of vic­tims of sexual misconduct is a worthy cause, but “the cure is worse than the disease.”

“I don’t think the answer is to strip the accused of all their rights and create a one-sided process that presumes guilt from the start,” Dillon said.

Campus sexual misconduct: related cases

Other cases in Virginia courts raise issues similar to those de­tailed in “Colleges disciplined over discipline,” although without an accused sexual offender as plaintiff.

A defamation lawsuit against Rolling Stone magazine by a Uni­versity of Virginia administrator led to an ongoing skirmish in­volving the former student who described a purported gang-rape. Even after “Jackie” sat for an April 4 deposition, lawyers still were fighting at press time over access to emails and texts about an invented boyfriend.

Another suit against JMU ac­cused the school of a feeble response when a female student complained that male students shot video while she was stripped and groped at a spring break party. Dillon – the U.S. district judge – faulted the school for not doing more to block dissemi­nation of the resulting video as she denied a motion to dismiss. The Ti­tle IX case is pending.

Bridgewater College was cleared of Title IX allegations in an unusu­al case in which the accused male student confessed to sexual assault and was suspended. The female vic­tim claimed the school should have done more to keep her informed of the process, but her claim foun­dered on Title IX’s strict “deliberate indifference” standard.

A female victim of a campus rape is battling Virginia Wesleyan Col­lege in Norfolk Circuit Court, claim­ing the school negligently hired a peer advisor who failed to prevent the assault. Although a judge ruled the school had no “special relation­ship” duty to prevent harm from others, the judge refused to give the school protection under Virginia’s doctrine of charitable immunity.