Lawsuits against colleges attempt to redefine Title IX

The lawsuit filed against Swarthmore is one of several lawsuits filed against colleges across the United States by students and former students who have taken issue with college judicial procedures.

Title IX, a section of the Educational Amendments passed by Congress in 1972 that provides that “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance,” is typically used by women to get equal treatment on campus. Over the past year, however, it has started to be used by men pushing back against what they view to be an unfair process of judging sexual assault cases on college campuses. By fighting in court, the cases are pushing the envelope for how college sexual assault cases are handled by the judicial system and challenging the preponderance of evidence standard established in the “Dear Colleague” letter, as well as college judicial procedures.

Andrew Miltenberg, a lawyer who is pursuing a similar case against Vassar College, described these cases as “the beginning of a movement back to the center.” Peter Yu, a student expelled from Vassar after being found guilty of sexual assault, is suing the college for, among other things, “a failure of due process for the student population, especially the male student population.” In response to sweeping complaints filed at colleges across the country, embodied in the Know Your IX campaign and culminating in President Obama’s establishment of a White House Task Force to Protect Students from Sexual Assault, he says, a number of colleges “swung too far in the other direction.” He described the cases as working toward building case law.

The suit filed against Swarthmore seeks civil compensation for alleged violation of the Title IX rights of the expelled student, who filed under the pseudonym John Doe, as well as alleged breach of contract by the college.

Title IX allows for a private right to action seeking compensation and relief directly from the college. The suit filed against the college seeks civil compensation for alleged violation of the Title IX rights of the expelled student, who filed under the pseudonym John Doe, as well as alleged breach of contract by the college. It claims that the college violated its Student Handbook in order “to demonstrate its new ‘zero tolerance’ standard,” and John was a “male accused of sexual misconduct at the wrong time and in the wrong place.” The nuances of the discrimination charges levelled by John are laid out in a Phoenix article published last week.

A landmark Title IX lawsuit filed against Vassar College in 1992, Yusuf v. Vassar, is cited by both parties. In that case, an appeals court concluded that “we may safely say that Title IX bars the imposition of university discipline where gender is a motivating factor in the decision to discipline.” Despite this, “allegations of a procedurally or otherwise flawed proceeding that has led to an adverse and erroneous outcome combined with a conclusory allegation of gender discrimination is not sufficient to survive a motion to dismiss.” Rather, the ruling said, a “plaintiff must … also allege particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding.” In that case, the court found that Yusuf’s Title IX claim stood because “the allegation that males invariably lose when charged with sexual harassment at Vassar provides a verifiable causal connection” between flawed proceedings and allegations of gender bias.

While most Title IX discrimination suits filed against colleges involve sexual harassment or unequal facilities for men and women, recently there has been a movement towards using Title IX suits to challenge a perceived overstepping by colleges in their rush to respond to sexual assault controversies. In one of the documents filed in his suit, John articulates the logic behind this argument: “Because female students at Swarthmore rarely (if ever) face charges of sexual misconduct, they are not disadvantaged by the College’s sexual misconduct policies that place onerous burdens on the accused students and deny them rudimentary due process safeguards.” As the “accused (male) is disproportionately affected” by the sexual misconduct proceedings, the policies “disproportionately adversely affect male students.”

“These cases are going to start to build a bank, a foundation, by which someone looking at a situation like the one at Swarthmore or Vassar can look and say there is now a burgeoning set of cases that have been decided on this issue and to help us interpret this statute,” Miltenberg said, in reference to Title IX.

A similar case against Xavier University, filed last August and settled under confidential terms last Thursday, has already been cited as precedent. Basketball player Dez Wells sued the college for violating his Title IX rights after they pressed forward with a sexual assault charge despite his accuser’s refusal to press charges. A judge rejected the university’s motion to dismiss the case in March because they found that the president of the university made Wells “into a scapegoat so as to demonstrate a better response to sexual assault.” This finding was cited in John’s response to Swarthmore’s motion to dismiss, as John is claiming a similar charge.

A Title IX case filed against Saint Joseph’s University in July also takes issues with the judicial process in effect at the university, claiming “an environment in which a male accused is so fundamentally denied due process as to be virtually assured of a finding of guilt.”

Each of these cases takes issue with the preponderance of the evidence standard established in the “Dear Colleague” letter sent out by the Department of Education in 2011. The “Dear Colleague” letter mandated a “preponderance of the evidence” standard, “i.e., more likely than not,” in place of the higher standard of “clear and convincing evidence,” which, the case against Swarthmore argues, is unfair given “the fact that they face felony-type charges with the most serious potential penalties,” such as expulsion.

The suit argues that “this low evidentiary standard unfairly skewed the proceedings and resulted in a virtually pre-determined finding in favor of Jane,” the pseudonym used for John’s accuser. The suit goes on to claim that the college’s application of that standard “violated due process principles” by “requir[ing] the accused to bear the burden of proving innocence.”

Attempts to codify the preponderance of the evidence standard in the Campus SaVE Act in 2012 were defeated by civil liberties groups, namely the Foundation for Individual Rights in Education. Instead, the Campus SaVE Act stated only that institutions must make clear what standard of evidence they will use.

But a report published on Monday by the White House Task Force to Protect Students From Sexual Assault reaffirmed the preponderance of the evidence standard in its attached Checklist for Campus Sexual Misconduct Policies. The cases currently being heard will provide an alternate avenue for this standard to be challenged in a courtroom.

The report, which was released along with a “1 is 2 Many” public service announcement featuring, among others, Vice President Joe Biden, President Barack Obama and actor Daniel Craig, also makes a number of other recommendations. It mandates, among other things, mandatory anonymous campus climate surveys in order to “gauge the prevalence of sexual assault on campus, test students’ attitudes and awareness about the issue, and provide schools with an invaluable tool for crafting solutions.”

A new website launched by the White House, NotAlone.gov, makes some enforcement data public and offers a clear resource for Title IX and Clery Act information. However, it still does not offer information about which schools are currently under investigation by the Office for Civil Rights for Title IX or Clery Act complaints, which has been sought by, among others, a group of 39 members of Congress. According to research conducted by the Huffington Post, there were 52 pending Title IX investigations as of April 3, but the OCR will only release information on Title IX complaints on individual request.

Swarthmore has filed a reply to John’s response to its motion to dismiss his case that restates its previous arguments and urges the judge, Stewart Dalzell, to throw out the case for failure to state a claim.

“One of these cases on its own is not going to change the tide,” Miltenberg said. “It’s going to take a number of cases to really change the momentum.”