Over the past six years, more students who believe they were falsely accused of sexual assault have sued colleges. And even though those students seldom win in the courts, the costs for colleges to fend them off are adding up.
United Educators, a risk-management and insurance firm, reviewed dozens of cases from 2011 to 2015 in which colleges filed claims with the company involving accused students and eventually suffered financial losses. Most of the cases were lawsuits or “demand letters,” another form of legal action. On average, United Educators and colleges ended up paying $187,000 per case.
In 40 percent of the cases, institutions were out more than $200,000. On one occasion, a legal fight cost a college $1 million. (Those figures include the expense of hiring lawyers as well as settlement payments and other costs associated with resolving a case.)
Only one of the lawsuits went to trial, and the institution won a favorable verdict, but it had to pay a high price, $500,000, in the legal battle.
In comparison, according to an earlier United Educators study, claims involving sexual-assault victims that resulted in financial losses cost colleges an average of $350,000. (Those cases included both lawsuits and federal investigations.) But the typical defense costs for both types of cases were about the same, around $130,000.
Institutions are actually getting it right, so you’re not having losses.
Most of the time, when a sexual-assault report is filed and a college investigates, “institutions are actually getting it right, so you’re not having losses,” said Alex Miller, associate vice president for research and program development at United Educators. But some students are unhappy with how the process played out and decide to seek financial or other remedies from their colleges, Mr. Miller said.
When that happens, no matter who’s bringing the legal action, the costs associated with defending against allegations of mishandled sexual-misconduct cases are “painful,” he said.
Lawsuits brought by accused students have become more common since the U.S. Department of Education’s Office for Civil Rights issued a “Dear Colleague” letter, in 2011, that put greater pressure on colleges to promptly and equitably respond to reports of sexual assault. Critics of that guidance say it has encouraged colleges to run investigations that are biased in favor of victims and that trample on the rights of accused students.
‘A Lot at Stake’
The most frequent claims brought by accused students in the cases reviewed by United Educators were breach of contract, in which students often argued that institutions hadn’t followed their own policies when investigating their cases. Accused students also frequently alleged violations of Title IX, the federal gender-equity law, saying that their colleges had treated them differently because they were male.
Another common claim was negligence, in which students asserted that campus administrators and other people involved hadn’t been properly trained to conduct sexual-assault investigations or had done a poor job of carrying out their responsibilities.
For the most part, students filed suit to try to have sanctions against them dismissed. Nearly half of the cases involved accused students who had been found responsible for violating sexual-misconduct policies and had been expelled; one-third of those students were seniors kicked out not long before they were supposed to graduate.
In one-fourth of the cases, the students had been suspended for some period of time, from a few weeks to two years, or “as long as the victim was enrolled.”
The rest of the students either had faced minor punishments, like disciplinary probation, or had not been found responsible for sexual misconduct. But many of them alleged that their educational experience had been disrupted in some way or another during the investigation.
“There’s a lot at stake here,” Mr. Miller said. “You have people who were sexually assaulted, and you have people who were accused of something very serious that could severely impact their future.”
A Lack of Clarity
United Educators published the data in a white paper that also features a series of case studies and recommendations for colleges to try to avoid becoming embroiled in legal trouble. “More than anything,” Mr. Miller said, “having consistency and being clear about what people are supposed to do and when is very key.”
Lacking clarity in campus policies was one of the biggest problems. In one case, a college didn’t make clear how its adjudication process would work or who was permitted to attend a hearing, nor did it explicitly address whether and how the alleged victim and perpetrator would be notified of the outcome.
The accused student in question wasn’t found responsible but wasn’t informed of that result, and after being kept off the campus for a month, he sued.
Students’ poor understanding of consent was a minefield for perpetrators, victims, and schools. Institutions should focus significant training resources on this issue.
Other common issues included inadequate training for investigators and the people serving on hearing panels; reluctance by colleges to help students found not responsible to get their education back on track; and a misunderstanding of consent. In nearly 60 percent of the accused-student cases reviewed, at least one of the students involved had consumed alcohol, which led to confusion about whether consent had been granted or could have been granted.
“Students’ poor understanding of consent was a minefield for perpetrators, victims, and schools,” the white paper states. “Institutions should focus significant training resources on this issue.”
Some recommendations were relatively straightforward. The paper cites one case in which a person investigating a sexual-assault case was also assigned to the hearing panel responsible for determining whether the accused student had violated campus policies, and that person had “indicated bias in favor of the victim.”
The lesson? Colleges should be careful about whom they’re putting on their panels. “If an institution uses a panel model, it needs to keep the investigation and adjudication functions separate,” the paper states.
A ‘Hostile’ Campus Atmosphere
Other suggestions seem more difficult to put in practice. Many lawsuits involved colleges that were also being investigated by the Office for Civil Rights for potential violations of Title IX. Several accused students at those institutions alleged that “the campus atmosphere was hostile to them and made fair treatment impossible.”
At one college, the Title IX coordinator reviewed a sexual-assault report and decided not to conduct a formal investigation. But after a federal complaint related to a different case was filed against the college, the official reopened the first case, and the accused student was found responsible.
In addition to ensuring that campus procedures afford equal treatment to both alleged victims and alleged perpetrators, colleges must be careful about external factors that could appear to compromise investigations, United Educators warned.
Avoid allowing a ‘victim-centric’ atmosphere to take hold on campus and potentially taint an investigation — or at least handing the perpetrators an easy argument that this occurred.
“Particularly if your institution is subject to an open OCR investigation or to the influence of active victims’ advocacy groups,” the paper says, “avoid allowing a ‘victim-centric’ atmosphere to take hold on campus and potentially taint an investigation — or at least handing the perpetrators an easy argument that this occurred.”
How should a college avoid creating a “victim-centric” atmosphere? That doesn’t mean discounting the important work done by victim-advocacy groups, Mr. Miller said, and all investigators should be trained in trauma-informed interviewing techniques. But they should also be educated on how to work with accused students, he said.
Another trend United Educators has noticed is a rise in defamation claims brought by accused students against colleges, Mr. Miller said. That’s related to the increasingly common practice of noting on transcripts whether students have been found responsible for sexual misconduct.
“The need to be fair and follow your process,” he said, “is more important than ever.”
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.
