As federal officials have stepped up enforcement of rules requiring colleges to resolve reports of sexual assault, many accused students who contend that they were unfairly found responsible and expelled have sued their institutions.
But in the last month, victories for universities in two such lawsuits show how difficult it is for accused students to win legal battles against institutions on the issue. That is particularly the case if — as happened in the two recent suits — the students allege that in finding them responsible for sexual misconduct, their institutions discriminated against them because they are men.
The two cases that were recently rejected cited the very same gender-equity law that prohibits sexual assault — Title IX of the Higher Education Amendments of 1972 — to claim gender discrimination on behalf of the male students found responsible. Andrew T. Miltenberg, the lawyer who represents the young men in both cases, says the judgments simply show that to be successful, accused students must broaden their approach, using additional claims against the universities that disciplined them for assault. He says he is appealing both decisions.
Last week Mr. Miltenberg also filed another Title IX complaint against Columbia University on behalf of a male student, Paul Nungesser, who was accused by a female student of sexual assault. The suit says that even though Columbia found Mr. Nungesser not responsible, it allowed his accuser — Emma Sulkowicz — to publicly call him a rapist and also gave her course credit for a performance-art project in which she has carried a mattress around the campus this year in protest of Columbia’s decision to exonerate Mr. Nungesser.
Legal experts say using Title IX to claim discrimination against male students found responsible can be tricky. “It is hard for somebody in that position to prove the reason that something went wrong in the university’s hearing of their case is because of sex discrimination,” says Erin E. Buzuvis, a professor at the Western New England University School of Law who writes about gender discrimination. “So the question is, Is there another tactic?”
The two recent cases that were dismissed were brought against Vassar College and Columbia. In the Vassar case, Peter Yu contended that in finding him responsible for sex assault and expelling him in 2013, the institution had violated its own policies and Title IX. Mr. Yu has said he and the woman who accused him had consensual sex, but the university determined that the female student was too drunk to consent.
Judge Ronnie Abrams of the U.S. District Court in New York City granted summary judgment in favor of the university on March 31, saying that even if Vassar had made mistakes in handling his case, Mr. Yu did not prove that gender bias had caused the errors.
In the case against Columbia, Judge Jesse M. Furman of the same court this month granted the university’s motion to dismiss the Title IX claim brought by a male student identified only as John Doe, after the university suspended him in 2013 for having what it determined was a nonconsensual sexual encounter. The judge said that while the male student contended in his lawsuit that Columbia’s procedures were biased against men, the student had failed to offer specific examples of how he was personally discriminated against based on gender.
Judge Furman said that in order to succeed, a plaintiff must “allege particular circumstances suggesting that gender bias was a motivating factor behind” a university’s ruling.
Mr. Miltenberg says Judge Furman was looking for the kind of overt discrimination that no longer exists. “No one is sitting on a disciplinary panel saying, ‘I hate men. I think all college men are predators,’” says Mr. Miltenberg. “But that doesn’t mean that discrimination isn’t happening.”
But Laura L. Dunn, founder and executive director of the advocacy group SurvJustice, says the court rulings should give universities confidence that their disciplinary proceedings in sexual-assault cases are fair. “This is showing,” she says, “that universities have done the right thing.”
Charged Atmosphere
In the past few years, colleges have faced increasing pressure from advocacy groups and the federal government to prevent sexual assault and improve the campus climate for women. Title IX compels them to resolve reports of sexual misconduct whether or not an alleged victim reports the incident to the police. If a college fails to handle cases promptly and fairly, the U.S. Department of Education can find that it has created a hostile learning environment and can strip the institution of all federal funds.
Young men who have been accused of sexual misconduct and disciplined by their institutions say the federal pressure has caused campuses to establish procedures for handling assault cases that are tipped in favor of complainants and that deny the accused due process. Some parents of those men have started a support group called Families Advocating for Campus Equality, and some young men are filing lawsuits against their institutions.
An organization called A Voice for Male Students lists 68 cases in an online database of lawsuits that allege violations of due process and other claims related to how universities handled assault claims. The list includes suits against Occidental College, Wesleyan University, the University of Massachusetts at Amherst, and another against Columbia University. Most of the suits have been filed in the last two years.
Charles B. Wayne, a lawyer in Washington, says only about a half-dozen claims by accused men alleging violation of Title IX have survived a motion to dismiss. And only one case, he says, has ever gone to trial, but not on the Title IX issue.
In a 2011 case against Sewanee: The University of the South, a federal jury found in favor of the accused male student, who was represented by Mr. Wayne. In that case, the male student alleged the institution had been negligent in handling the disciplinary proceedings against him by failing to follow its own procedures and by failing to use procedures that were standard among institutions for dealing with complaints of sexual assault.
Legal experts say that if accused students want to make successful claims against their institutions, they should file accusations in addition to violations of Title IX. For example, many lawsuits brought by accused students contend that their universities are guilty of breach of contract by failing to follow their own procedures for handling assault cases.
Some cases that allege violations of Title IX have settled short of a final verdict. In November, Swarthmore College agreed to vacate its decision to expel a student it found responsible for sexual assault. The student had filed a lawsuit in 2014, accusing Swarthmore of violating many of its own policies as well as with violating Title IX.
The University of Colorado at Boulder paid $15,000 to settle a lawsuit filed by a young man who contended the university had violated Title IX when it suspended him for nonconsensual sexual intercourse. The student said the sex was consensual.
Robin Wilson writes about campus culture, including sexual assault and sexual harassment. Contact her at robin.wilson@chronicle.com.
