LOS ANGELES – Peter Yu, Drew Sterrett and Lewis McLeod were headed toward bright futures at prestigious colleges and universities when each got involved in one-night sexual encounters.
All three young men claimed the encounters were consensual – but the women asserted otherwise. In each case, campus officials found the men responsible for sexual assault and expelled or suspended them.
But all three are pushing back, suing the schools on charges that their rights to a fair hearing were violated.
As universities and colleges launch intensified efforts against sexual misconduct, more cases are shifting from campuses to courtrooms.
The three young men are suing Vassar College, the University of Michigan and Duke University, respectively; students who were suspended or expelled for sexual assault have also filed actions against Occidental College, Columbia University, Xavier University, Swarthmore College, Delaware State University and a host of other campuses.
Most are arguing that the college hearing process is unfair. In a new twist, some young men also are asserting that the college discipline process is skewed against them because of their gender, violating the 1972 Title IX law, which bans sex discrimination by schools receiving federal funds.
The lawsuits reflect growing concern about the legal rights of the accused, especially as complaints of sexual misconduct increase.
Some critics argue that students should have the right to an attorney and to directly question their accusers – protections not granted on all campuses.
They also expressed concerns about the federal government’s 2011 directive to apply a lower burden of proof – “preponderance of evidence” – in these sexual misconduct hearings, instead of the higher standard of “clear and convincing evidence” that some campuses had been using.
That directive by the Department of Education’s Office of Civil Rights also gave both parties the right to appeal a decision, which critics argue amounts to “double jeopardy” for the accused student who was cleared once.
“I think there has been a significant amount of pressure on universities to treat all of those accused of sexual misconduct with a presumption of guilt,” said Robert Shibley, senior vice president of the Philadelphia-based Foundation for Individual Rights in Education, a leading voice for free speech and due process rights at colleges and universities.
But many activists who fought hard for stronger federal action against campus sexual assault are dismayed by contentions that universities are improperly punishing innocent students. Thanks to activist pressure, the federal government has launched more investigations, fines and directives since 2011 than ever before.
Annie Clark, a former University of North Carolina student who has helped more than a dozen groups file federal complaints on sexual misconduct, said campus hearing processes are still riddled with problems for both sides. But overall, she said, accusers face more problems making their claims than do the accused.
Last week, for instance, hundreds of students rallied at Stanford University to protest what they regard as weak sanctions against sexual assailants.
The rally organizer, Leah Francis, is protesting Stanford’s decision not to expel a student that a university disciplinary panel found responsible for forcible sexual assault against her. Instead the university imposed a five-quarter suspension, community service and sexual assault education.
Erin Buzuvis, a law professor at Western New England University who writes the Title IX Blog, said claims by men of sex discrimination under Title IX would be difficult to prove. Among other things, it would require men to show that women accused of sexual assault received more lenient treatment– and there are few such cases, if any, she said.
Still, Andrew Miltenberg, a New York attorney who represents plaintiffs suing Vassar and Drew University, said interest in filing such cases has surged in the last year; he is now receiving three to four calls a week from all over the country.
“The common thread is really egregious due process violations,” he said.
In the Vassar case, a female student filed a charge of sexual assault against Miltenberg’s client, Yu, a year after the encounter occurred. In court filings, Yu claims the encounter was consensual and that Vassar ignored evidence, such as the female student’s friendly Facebook messages saying she had “a wonderful time” and was “really sorry” she led him on.
In his case against Duke University, McLeod recently won a court ruling blocking his expulsion while his lawsuit proceeds. A North Carolina judge found that McLeod had demonstrated a “likelihood of success” in his claims that Duke violated his rights in the disciplinary hearing process. McLeod asserted in the lawsuit that the sex was consensual and that he immediately stopped when she began to cry.
Some universities are settling lawsuits. In April, basketball standout Dezmine Wells settled his lawsuit against Xavier University, which expelled him after finding him responsible for sexual assault.
Wells asserted in the lawsuit that he had consensual sex with a woman after she took off most of her clothes, kissed him and gave him a lap dance during a game of “Truth or Dare.” She later recanted her charges, he claimed in the lawsuit.
Wells sued for sex discrimination and negligence, among other things. He asserted that Xavier used inadequately trained investigators and advisers and improperly placed the burden of proof on him to demonstrate his innocence. Both sides have declined to comment on the settlement.