by Aimée Sutton
Title IX is no longer just for equity in women’s sports. It’s also for equity in campus investigations of sexual assault. And not just to protect women.
Last month the U.S. Court of Appeals for the Second Circuit issued the first appellate court decision allowing male students disciplined for sexual assault to sue the college if they can show a minimal plausible inference of discriminatory intent.”
The plaintiff in that case, referred to as “John Doe” to protect his privacy, sued Columbia University. Columbia had found he had had “Non-Consensual Sexual Intercourse” with a fellow student and so suspended him for three semesters. Even the woman who complained of the assault petitioned the university to reduce the penalty. The university administration denied all requests for leniency. A dean explained that the seriousness of the offense merited the long suspension.
It was not just the harsh punishment that did not sit well with the accused. He objected to inequities in the process. He pointed out that the administrators who were involved in adjudicating his case had been the focus of other students’ complaints that Columbia was not doing enough to protect women from sexual violence on campus. Columbia has also been the focus of media attention, much of it negative, on how it has treated women students who reported being raped on campus. Especially prominent in the news has been a woman who carried a mattress on her back around the Columbia campus to protest her treatment by the university after she reported being raped by a fellow student.
John Doe claimed the university came down so hard on him because it had been stung by the bad press. He also alleged that the administrators who ran the hearing process tilted it against him. Specifically, he said that his witnesses weren’t interviewed and that he was not provided notice of certain rights, including the right to submit a written statement.
The trial court granted Columbia’s summary judgment motion, awarding it victory without trial, but the court of appeals reversed. It concluded that Doe “gives plausible support to the proposition that [the university was] motivated by bias in discharging their responsibilities to fairly investigate and adjudicate the dispute.”
In 2011, the U.S. Department of Education notified all colleges and universities that allegations of sexual mistreatment had to be judged by the preponderance-of-the-evidence standard of proof—in other words, on a more-likely-than-not basis—rather than by the requirement of proof beyond a reasonable doubt used in criminal trials. Critics say that has forced colleges to deny the accused fair treatment.
It has been my privilege to represent accused students at the University of Washington in Seattle and Pacific Lutheran University near Tacoma. At the Marshall Defense Firm we welcome opportunities to defend students in sexual assault cases throughout Washington State.
The decision in Doe v. Columbia University is likely causing great angst amongst college administrators in charge of student discipline. Their work does not have to be impossible, though. Transparency and even-handed administration of disciplinary proceedings for sexual assault can produce a process that is viewed as fair by both the accuser and the accused.