A recent University of Southern California court decision is the eighth so far this year in favor of a student accused of sexual assault and "convicted" in a campus hearing.
"John Doe" was found guilty of violating USC's student code of conduct after "Jane" alleged that she had been sexually assaulted by several male students at a party. She said her sex with John Doe was consensual but he was found guilty because he allegedly "encouraged or permitted" the others to slap Jane on her buttocks.
John tried to appeal to several campus entities, claiming he had not received a fair chance to represent his case. He was not permitted to cross examine witnesses. Interestingly, Jane claimed at one point that her memory of the evening was foggy because she had been drinking.
Directives from the U.S. Department of Education set up a system for judging these cases that rely on a "preponderance of evidence" standard rather than reasonable doubt and erode the right to due process of the accused. Because Title IX officers tend to be interested in guilty findings from college tribunals, hearigs are stacked against the accused. John claimed this is what happened to him.
When campus appeals failed, John doe sued. The first verdict went against him but on appeal he won. (You can get a detailed account of the case from the ruling.) These cases have budgetary consequences for universities–and given that the year is young, we can probably expect several more such reversals before the year is up.
If you want a good summary of the situation, I recommend a press release from SAVE (Stop Abusive and Violent Environments), an organization that supports evidence-based and constitutionally sound solutions to campus sexual assault. The press release reads:
The growing number of rulings in favor of accused students was the focus of a recent Inside Higher Ed article. (3) The account quoted Gary Pavela, editor of the the Association of Student Conduct Administration's Law and Policy's Report, as saying, “In over 20 years of reviewing higher education law cases, I’ve never seen such a string of legal setbacks for universities, both public and private, in student conduct cases….Something is going seriously wrong.”
These lawsuits represent a growing financial burden for colleges. According to Brett Sokolow of the Association of Title IX Administrators, responding to a due process lawsuit "can run into the high six or even seven figures, not counting a settlement or verdict." (4) In February, the University of Montana agreed to pay a former student $245,000 because of the university's biased adjudication of a sexual assault allegation. (5)
Risk management efforts to forestall these lawsuits are becoming increasingly costly, as well. Salaries for Title IX coordinators can range from $50,000 to $150,000 a year. Sokolow estimates the cost of lawyers, counselors, and educational campaigns run from $50,000 a year at small colleges, to half a million dollars and more at large universities.
Harvard University now employs 50 Title IX coordinators across its 13 schools. At Yale, nearly 30 faculty members and staff are involved in its Title IX programs. Columbia University now has a Title IX staff consisting of 11 educators and 7 case workers, and covers the legal expenses of both accusers and the accused.
The American Council of Trustees and Alumni recently issued a statement sharply critical of the U.S. Department of Education for issuing directives that have "unconscionably conflated 'conduct and speech cases' in a way that has grossly expanded the intrusion of this unaccountable bureaucracy at the expense of faculty and student constitutional rights." The Council warned, "It’s time that institutions—and their boards—fought back."
If these institutions will not stand up for the right of due process, then maybe they will stand up for their pocket books.