“John Doe” was in his second year in Pennsylvania State University’s honors program when he told a fellow student she was “beautiful” in a flirty text session that led to the two of them having sex. Now the 19-year-old may never get his degree from Penn State or any other college.
Young men like Doe, convicted of sexual misconduct by campus kangaroo courts, are an all too familiar feature of today’s college landscape. The good news is that a growing movement of lawyers, activists and parents is pushing back. Not a month goes by lately without a news story about a young man scoring a large settlement against his school for having violated his due-process rights. But how far such litigation efforts can go toward fixing the problem is an open question.
John Doe’s accuser, for example, filed a complaint months after their encounter accusing him of pressuring her into sleeping with him and even though the two had been engaged in a steamy text conversation. Administrators decided that his “you’re beautiful” text amounted to “cajoling,” a subset of “coercion.”
Now he’s filed a lawsuit against Penn State, alleging that the school grossly violated his due-process rights. The school barred him from cross-examining his accuser and didn’t allow him to call witnesses on his behalf.
Some 500 cases have been brought against colleges since 2011, when the Obama administration issued its infamous “Dear Colleague” letter, threatening to withhold federal funding from schools that fail to devote sufficient resources to prosecuting sexual misconduct. The letter also pushed colleges to lower the evidentiary standard for proving an accusation.
The letter thus incentivized schools to punish alleged miscreants — even ones facing dubious claims. Lawyers now talk about life before the letter and after. As New York-based attorney Andrew Miltenberg points out, before the letter, 55 schools faced federal probes. “Within months after publication there were several hundred.”
Miltenberg is one of a new class of lawyers who specialize in campus due-process cases; he represented the successful defendant in Columbia University’s “Mattress Girl” affair, for example. This month, he launched the first ever class-action suit on behalf of college students denied due process.
He figures that a class action, a suit on behalf of a number of people, is splashy enough to at least bring more attention to the issue. And publicity over the suit could draw in “men hiding in the shadows, too embarrassed to come forward or without the funds to hire a lawyer.” (He is working on getting his class recognized by a court.)
Backing the courtroom efforts are organizations like Save Our Sons, whose modest goal is to “keep our sons enrolled in college and educated,” and Title IX for All, which maintains a comprehensive database of legal documents to aid lawyers and potential plaintiffs.
Then, too, President Trump’s education secretary, Betsy DeVos, withdrew the Obama letter and replaced it with more due-process-friendly guidelines.
There have been promising appeals court decisions, like the one in June, out of the Chicago-based Seventh Circuit Court of Appeals, which “sided with a student who sued his school for unfairly finding him guilty of sexual assault,” according to City Journal’s KC Johnson. It also “held that the university violated the student’s due-process rights and engaged in gender discrimination” against Title IX.
So far, so good. The problem: Many school admins don’t care. They are still apparently determined to prosecute alleged abusers and win, whatever the cost.
When Michigan-based Deborah Gordan, another due-process specialist, took on the University of Michigan, the university spent more than $600,000 in the first year of litigation alone — while Gordan’s camp only spent $100,000.
Why don’t schools do the right thing by affording both accusers and the accused due process? Wouldn’t that be fairer — and cheaper? Maybe it’s because students with strong cases are accepting out-of-court settlements rather than wait longer for a jury trial. A six-figure sum here or seven figures there don’t make a dent in university budgets. Columbia University, for example, has an $11 billion endowment.
And it’s all very politicized. Liberal admins see due-process reforms as Trump’s policies and refuse to adopt them as a form of #Resistance. Bottom line: Unless campus culture changes dramatically, colleges are still not a safe space for your sons.
Twitter: @StephMasha