After years of complaints that they weren’t taking sexual assault reports seriously, colleges are finally doing so, and finding themselves slammed with lawsuits from men who say they were unfairly suspended or otherwise punished.
The schools are feeling caught in the middle.
“We’re trying to walk the razor’s edge between being more attentive to the issue but still being fair to all our students,” said Dana Scaduto, general counsel at Dickinson College in Carlisle, Pennsylvania, who has testified before Congress on the issue.
At least 75 men have sued their schools since 2013, complaining largely of reverse discrimination and unfair disciplinary proceedings. Most were never charged with a crime because the accuser didn’t go to police, or authorities decided there wasn’t enough evidence.
In March, former Yale University basketball player Jack Montague said he planned to sue after he was expelled over a sexual assault allegation, and two University of Oregon basketball players suspended over 2014 rape accusations sued for $10 million each after prosecutors declined to bring charges.
A federal judge in Rhode Island allowed a case to move forward by a Brown University student suspended for 2½ years over a sexual assault accusation.
Two former University of Findlay athletes who were expelled in 2014 are suing the university in U.S. District Court, Toledo, for allegedly conducting a “sham investigation.”
Alphonso Baity, who was a junior basketball guard, and Justin Browning, who was a sophomore football defensive back, were dismissed from the university after they were accused of sexually assaulting a freshman student in a university-owned house on campus in September 2014.
Baity and Browning each said they had consensual sex with the female student. No criminal charges were filed. Each former athlete is apparently seeking more than $75,000 in damages.
The get-tough approach by colleges is attributed largely to a 2011 letter from the U.S. Department of Education’s Office for Civil Rights. The letter told schools they must promptly investigate allegations of sexual assault and harassment, even if the accuser does not make a complaint to the institution.
It instructed schools to rely on the preponderance-of-evidence standard used in civil cases, instead of the beyond-a-reasonable-doubt standard employed in criminal trials. That means a student can be disciplined if the college finds it more likely than not that an assault occurred.
Schools that do not comply can face an investigation and a cutoff of federal money. As of mid-March, the Office for Civil Rights was conducting 219 such investigations at 173 schools.
Known as the “Dear Colleague Letter,” it has been hailed by advocates who say many schools are now moving in the right direction to address campus sexual assaults.
“For a very long time, there was no due process for victims. Victims were told to withdraw from school. Victims were told to take the semester off,” said Colby Bruno of the nonprofit Victim Rights Law Center.
Now, Bruno said, “yes, there are more decisions against perpetrators. Yes, perpetrators are being held accountable. And that is going to bother people.”
Advocates for the accused say that school disciplinary panels are unequipped to handle such serious allegations and that colleges have gone so far to accommodate alleged victims that they are trampling on the rights of the accused.
Under the federal guidance, when a school learns of allegations of sexual assault or harassment, it must take immediate steps to ensure the victim’s learning environment is free of hostility.
The accused can be removed from a class, dorm or campus even before a disciplinary hearing is held so that the accuser does not have to cross paths with her alleged attacker. Disciplinary proceedings can take months, meaning the accused can miss a year of school before the case is decided.
Advocates for both accusers and the accused say college disciplinary processes are often vague and applied inconsistently. Some schools have a single investigator. Others have a panel with faculty members. Some include students. Some allow lawyers, others don’t.
Some critics have said that universities should not be handling such cases at all and that sex crimes should instead be reported to police.
But victims’ advocates and many schools oppose that, saying it would discourage women from coming forward. Also, police investigations can take months, and prosecutions longer, meaning some cases might not be resolved before graduation.
Andrew Miltenberg, who represents the Brown student and close to 100 other male students accused of campus sexual assaults, said schools have become “hyper-aggressive” since the Dear Colleague Letter.
A common thread in his cases, Miltenberg said, is that they had some element of a consensual encounter, in which the two were dating or knew each other. Alcohol is often involved, sometimes a year or more has elapsed, and there are rarely witnesses.
“Part of the problem is they’re redefining what consent means,” he said.
“Now all of that adds up to more cases, more allegations and more hearings, and this is where the schools are in a tough spot and can and should be doing better.”
Such accusations can brand a student for life or put his education on hold for years, Miltenberg said.
“I even have Ivy League students who’ve been suspended who can’t get into a local community college during their suspension,” he said.
Miltenberg represents Paul Nungesser, who sued Columbia University, saying it violated his rights when it allowed fellow student Emma Sulkowicz to obtain class credit for her “Mattress Project,” in which she carried around the mattress on which she said he raped her. Nungesser denied the accusation and was found not responsible by the school disciplinary process.
Nungesser said in his lawsuit that he was branded a “serial rapist” and forced to return to his native Germany because he couldn’t get a job in the United States. A judge this month dismissed the lawsuit but said Nungesser may refile some claims.
Sulkowicz went to police with her allegation against Nungesser, but they did not bring charges. She has said the campus disciplinary process was badly mishandled.
In a 2014 essay in Time magazine titled “My Rapist Is Still on Campus,” she wrote of crying and hyperventilating when she learned he had asked permission to work in the darkroom during a photography class she was taking.
“As long as he’s on campus with me, he can continue to harass me,” she wrote.
Scaduto, of Dickinson College, questioned whether colleges are equipped to handle such matters.
“I don’t want to step away from the issues,” she said, “but I don’t know that we have the training, the skill, the resources to do it in-house anymore.”
In addition to the Dear Colleague Letter, federal legislation tells colleges to take action in response to a report of sexual assault on campus.
At the time the two University of Findlay athletes were expelled, the university said it was following the federal Violence Against Women Reauthorization Act, which requires allegations involving sexual crimes or domestic violence to be investigated by a panel of four university officials.
These investigators interview witnesses during a hearing and gather evidence. School officials must conduct their review as soon as possible, regardless of any police action, the University of Findlay said. They cannot determine whether police will bring criminal charges.