Jury Verdict in Sex-Assault Case at Sewanee Sends Warning to Private Colleges

September 02, 2011

A jury ruling on Friday against a private university illustrates how institutions can open themselves up to legal challenges if—amid rising pressure to resolve sexual­-assault cases—they fail to seek balance in disciplinary procedures for handling those cases, several experts said.

In Friday's verdict, a federal jury issued a split decision in the case of a former student who accused Sewanee: the University of the South of damaging his reputation in the course of a rape investigation, and who sued the Tennessee institution for million of dollars.

The former student, who remained anonymous under the name "John Doe" for the court proceedings, was awarded just $26,500 after the jury found the private institution was negligent in a disciplinary hearing that resulted from the rape accusation in 2008. The former student never faced criminal charges, but the faculty-run disciplinary panel found him responsible for rape.

In a court document explaining the verdict, the jury ordered the university to pay him $50,000 to cover his tuition and other expenses. But the jury reduced that amount to $26,500 because it regarded the student himself as partly responsible for the negligent handling of the disciplinary case. The jury, which did not further explain its thinking on that point, also awarded no money to the plaintiff for his claim of injury to reputation, injury to earning capacity, and a list of other charges.

In a written statement, the university said it strongly believed the student had received a fair hearing under its disciplinary process, and emphasized that the former student was able to recoup only the cost of his tuition.

The student's lawyer could not be reached for comment.

Finding a Balance

However small the damages in the case, private institutions should take note of it because it serves as an important example of an elusive principle, said Gary M. Pavela, a lawyer and writer specializing in higher-education law. A private college is not subject to the same constitutional due-process requirements that a public institution is, Mr. Pavela said, but it can make itself vulnerable to being sued if it assumes it is above those requirements and is not fair to any party. That's because creative lawyers can use language in a private college's catalog that refers to due process and find ways to argue that an institution broke a contract, he said.

Mr. Pavela said higher-education institutions across the country are under significant pressure to resolve more sexual-assault cases, and to do so with tougher penalties, though he doesn't consider that trend unjustified, he said.

"The danger is that we forget the need to find a balance," he said. "I think we have to pay a little less attention to whatever the fashion of the moment is and remember that we have to find a balance between competing interests. It's very important to hear the case before you decide it."

Colleges and universities will only see more cases like the one involving Sewanee because of new sexual-assault guidelines the U.S. Department of Education issued in April, said Peter F. Lake, a professor of law at Stetson University. The guidelines lowered the level of proof required during a disciplinary hearing, recommending a move from "clear and convincing" evidence to a "preponderance" of the evidence, a standard that uses a "more likely than not" sort of logic.

"Colleges are caught between a rock and a hard place because their process is going to be microscopically picked over by students who are accused," Mr. Lake said. "Understandably so, because it is essentially a scarlet letter if you're accused."

The jury's conclusion that Sewanee was negligent in handling the case shows how important it is that universities have fair policies and administer them consistently, said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education.

"Students certainly have a right to expect private universities to conduct themselves in a way they say they're going to," Mr. Shibley said. "Just because a university is private doesn't mean you don't have duties to your paying students."

To Gina M. Smith, a lawyer in Philadelphia who works with colleges on sexual-misconduct policies, the case is another example of the importance of streamlining policies—making sure that there is cooperation and coordination across the "silos" in a university and that policies are appropriately applied and executed. This case represents the broader issue of how a policy is carried out, not necessarily how it is developed, she said.

"Policies are at times aspirational, but not practical," Ms. Smith said. Policies "have to be able to move in a practical way to implement the values" that the policies are supposed to embody, she said.