Title IX Due Process

Illustration by Martín Elfman for The Chronicle

Since 2011, colleges have faced greater pressure to conduct prompt, thorough investigations each time they receive a sexual-assault report.

That’s because the U.S. Department of Education’s Office for Civil Rights put out a “Dear Colleague” letter that year indicating that federal officials were stepping up enforcement of Title IX, the gender-equity law, as it applied to campus sexual violence.

But according to a growing number of lawyers and due-process advocates, in taking sexual assault more seriously, colleges have trampled on the rights of many students — most of them young men — accused of misconduct.

More students who say they were the targets of false allegations are filing lawsuits and federal complaints against their institutions. Many tell stories of being suspended or expelled, losing job opportunities, and struggling with their mental health as a result.

These students are gaining more public sympathy — and, slowly but surely, they are winning legal victories.

For many colleges, that shift has been a wake-up call, says Justin Dillon, a partner at KaiserDillon PLLC, a law firm based in Washington. Mr. Dillon often represents accused students in campus hearings and, from time to time, in lawsuits against colleges. “There was a problem,” he says, referring to the poor treatment of campus rape victims before 2011. “But I think it was wildly overcorrected.”

He believes people are realizing that, in many of these cases, the best evidence available indicates that both the man and the woman were “equally into it” and equally drunk.

Under the Trump administration, lawyers and advocates say they are hopeful that the federal government’s approach to Title IX enforcement will place more emphasis on the rights of students who face misconduct allegations. Though it’s unclear whether President Trump’s Education Department will make campus sexual assault a priority, accused students have the support of many Republican elected officials.

The party’s 2016 platform addressed Title IX and sexual assault, saying that such incidents “must be promptly investigated by civil authorities and prosecuted in a courtroom, not a faculty lounge” and that “questions of guilt or innocence must be decided by a judge and jury, with guilt determined beyond a reasonable doubt.”

Over the past year, lower courts have ruled in favor of several accused students, mostly in cases alleging that institutions violated their due-process or contractual rights. (Due-process claims can be brought only against public universities, not private ones.)

Cases brought by accused students based on Title IX tend to fall flat — but in July, one such lawsuit, alleging that several Columbia University officials had demonstrated a pro-female bias, was allowed to move forward.

Accused students made progress outside of the courts last year, too. In October, in an apparent first, the Education Department found Wesley College, in Delaware, in violation of Title IX in its treatment of an accused student.

“This is probably the moment of the respondent,” says Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University. He says he’s already seen the department’s justification for the Wesley finding included in numerous court cases brought by accused students.

Jonathon P. Andrews is one of the students who says the campus process was stacked against him. He attended Hanover College, in Indiana, and describes himself as a liberal and a staunch feminist. Last academic year, Mr. Andrews says, a male student filed two sexual-assault complaints against him. The first disciplinary panel investigated and did not find him responsible; the second one did.

Mr. Andrews says the allegations against him are false, and he filed a complaint with the Office for Civil Rights last August, alleging that the college had violated Title IX by mishandling his case. He’s now working as project coordinator at a nonprofit group called Stop Abusive and Violent Environments, or SAVE, which advocates for better due process in campus disciplinary cases.

Beyond policy changes at Hanover, Mr. Andrews would like to see all colleges use a higher standard of proof to determine whether an accused student violated the campus sexual-assault policy — such as “clear and convincing.” That’s lower than the standard used in criminal cases, but higher than the “preponderance of the evidence,” or more likely than not, standard that the Office for Civil Rights says colleges should use.

Despite making some progress, accused students still face an uphill battle if they believe they’ve been subjected to unfair treatment by colleges. One key obstacle to taking on colleges in court is the legal cost. While some nonprofit groups will provide free legal help to students who say they are sexual-assault victims, no such assistance exists for those who believe they have been falsely accused, says Mr. Dillon, the Washington lawyer.

Even if a student has the money, challenges persist. Mr. Dillon says he doesn’t file suit unless he believes he has a compelling case, and he’ll often advise those who hire him not to sue. An accused student’s best chance of winning a favorable decision, he says, is still the campus disciplinary process.

But say a student puts reliable evidence in front of the campus fact finder — an investigator or a hearing panel — and the student believes that evidence is ignored. Then that student’s lawyer can build a much stronger legal case against the college, he says.

Neither Mr. Dillon nor Mr. Andrews believe all sexual-assault cases should be funneled to the criminal-justice system. “It would have a chilling effect on reporting,” Mr. Andrews says. But Mr. Dillon would like campuses to invite lawyers to participate in hearings, allow “some form of cross-examination,” and offer mediation, with students having the option to settle complaints privately instead of going through a formal disciplinary process.

Mr. Lake, of Stetson, believes the Supreme Court will eventually weigh in on the question of college students’ due-process rights in sexual-violence cases. In the past, he says, the court has warned colleges that taking too legalistic an approach to discipline could interfere with their educational mission.

In the meantime, it seems that lawyers who represent accused students will stay busy.

Andrew T. Miltenberg, managing partner of litigation at the New York-based Nesenoff & Miltenberg LLP, describes his schedule during one recent week: He talked at length by phone with two accused students on Monday. Then he flew to Denver to represent a Colorado State University student in the campus disciplinary process on Tuesday and Wednesday.

On Thursday and Friday, he talked with three more accused students, including one at Syracuse University who was recently expelled. A student at a Florida college also got in touch, saying that he’d just been suspended without a hearing and his recent acceptance to medical school had been deferred.

Within the next few weeks, Mr. Miltenberg says, he’ll be filing new lawsuits against four institutions. While the legal wins for accused students are still few and far between, he says the handful of recent decisions in their favor is heartening for due-process advocates.

“It’s opened the door,” he says, “for courageous jurists to look at these cases differently.”

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.