Widely publicized reports of an alleged rape on the campus of Spring Hill College last month resulted in an arrest and criminal charges, but allegations of sexual misconduct between university and college students frequently never reach the courts of law. Rather, they are more often adjudicated in administrative proceedings at the institutions themselves.
But those proceedings, regulated under a federal law known as Title IX and enforced by the U.S. Department of Education’s (ED) Office for Civil Rights, have been under scrutiny. Title IX regulations have changed in recent years, and new rules effective last August provide more clarity to a process that, as recently as the Trump administration, was guided only by a 2011 “Dear Colleague” letter stating it is the responsibility of institutions of higher education “to take immediate and effective steps to end sexual harassment and sexual violence.”
Among other things, the letter required schools to adopt a minimal standard of proof in administering discipline — the “preponderance-of-the-evidence standard” — even though the ED later acknowledged many schools had “traditionally employed a higher clear-and-convincing evidence standard.” Widely panned by legal analysts, the letter also discouraged cross-examination by witnesses, forbade schools from relying on evidence gathered in law enforcement investigations and encouraged timely resolutions of complaints.
But in 2017, the Trump administration rescinded the 2011 guidance and implemented new policies allowing each party or their advisor to conduct direct cross-examination at a live hearing, further narrowed the definition of sexual harassment and limited the extent to which the regulations cover off-campus conduct. Broadly speaking, Title IX laws prohibit sex-based discrimination in any school or other education program that receives federal money.
At Spring Hill College, attorney Domingo Soto is representing 22-year-old senior Vassil Kokali in a Title IX hearing under the new regulations after he was accused of raping a junior classmate in her dorm room last month. Kokali has pleaded not guilty to three felony counts of rape, sodomy and burglary, but in the meantime, he has also been barred from attending classes on-campus and is facing expulsion from the school.
“Up to this point, most [respondents of Title IX complaints] were expelled outright without due process,” Soto said. “But during the [Trump] administration, they instituted due process. Now, it’s treated as any other complaint, like a criminal complaint. We’ll hire an investigator, gather evidence, hold a hearing, and at the hearing, we get to present the stuff we think is gonna end up exonerating him.”
In a news conference last week, Kokali’s criminal defense attorney, Megan Doggett, claimed her client was innocent and the complainant was “completely awake and coherent when he arrived at her dorm room, and [she] actively [participated] in the sexual encounter.” Similarly, Soto said the complainant is “maligning” the school and the respondent with her statements on social media and in the public, and he believes his client will be vindicated.
Although they don’t appear to have ever faced criminal charges, at least two male students at the University of South Alabama (USA) also faced Title IX proceedings in recent years, and both have filed lawsuits against the school for sanctions that were imposed upon them.
As Lagniappe previously reported, in 2017 a plaintiff identified only as “John Doe” filed suit against USA, claiming its investigation of two sexual assaults he was accused of in 2016 violated his right to due process, breached his contract with the university and discriminated against him on the basis of his gender.
The student was suspended for two semesters and placed on academic probation after the school determined he was “responsible” for violating USA’s Code of Conduct for engaging in “sexual violence.” Allegedly, two women he had sex with in 2016 were too intoxicated to consent.
Doe claims the encounters with complainants — which occurred simultaneously and on previous occasions as well — were all consensual. Before the decision was appealed, his housing contract with the school was also terminated and he was required to complete a course on sexual misconduct.
In the lawsuit, Doe claims USA failed to assist him with gathering records for his Title IX hearing, provided him inadequate advocate representation and denied requests for accommodations equal to the complainants or special considerations at the hearing.
In February 2020, Senior Judge Callie Granade of U.S. District Court for the Southern District of Alabama declined to dismiss a due process claim in the case, finding Doe may have evidence USA was biased in the investigation because of existing relationships between the complainants and administrators involved in the Title IX hearings. The university also sought to dismiss the lawsuit based on qualified immunity, but Granade determined if the plaintiff can indeed show evidence of bias, USA is not entitled to qualified immunity.
However, Grenade did dismiss Doe’s Title IX claim of gender-based sexual discrimination, as well as his claims of negligence and conspiracy. She also determined the university and its employees have state agent immunity for their individual roles in the case. The case is scheduled for trial in the August jury term, but the defendants filed a motion for summary judgment in February, which is pending.
Meanwhile, a second Title IX lawsuit was filed against USA in December by another anonymous male student who claims the university “failed to provide the plaintiff with an expected standard of due process concerning wrongful allegations of sexual misconduct.” According to the complaint, in March 2019, a female medical student at USA filed a sexual harassment complaint against a male classmate — “John Doe II” — alleging he made sexually suggestive remarks during a tutoring session in her apartment and inappropriately touched her without consent.
After more than a year of investigation and delays, the school held a Title IX hearing in November 2020 — without the presence of the defendant — and found him guilty of the charges.
Doe II immediately contested the decision with administrators, but his appeal was denied. His sanctions included a mutual no-contact order with his accuser, restricted access to university housing and other facilities, mandatory completion of a “sexual assault prevention online training course,” a letter of apology to the complainant and a 500-word essay “regarding the information you learn while completing” the online training course.
In the complaint, Doe II explains he was known to the complainant and had previously rebuffed her romantic interest and innuendo. On the night of the incident, he accepted her invitation to provide a lesson in organic chemistry.
“Doe arrived at [complainant’s] apartment between the hours of 9 and 10 p.m. and immediately began the tutoring session. He explained the problem to [complainant] and then prepared to leave. Doe and [complainant] exchanged a friendly hug and one of his hands inadvertently touched against her buttock. After this consensual hug, Doe went home.”
Doe II claims as a result of the sanctions, he “has been deprived of access to educational opportunities at USA” while he has also experienced “damaged earning capacity, lost career and business opportunities, litigation expenses including attorney fees, loss of reputation, humiliation, embarrassment, inconvenience” and more.
The complaint mentions the regulatory environment after the “Dear Colleague” letter and alleges USA “was scared of being investigated or sanctioned by the Department of Education for not taking seriously complaints of female students alleging sexual assault by male students. Sanctions would include the loss of eligibility for all federal funding.”
“USA was motivated in this instance to accept the female’s accusation of sexual misconduct so as to show the student body and the public that the university is serious about protecting female students from sexual misconduct by male students,” it reads. “The investigators and administrators adopted a biased stance in favor of the accusing female and against the defending male in order to avoid the criticism that USA turned a blind eye to such misconduct by men.”
In both cases, the defendants are seeking monetary damages.
USA cannot comment on the lawsuits or Title IX hearings directly, but Dr. Krista Harrell, USA’s associate dean of students and Title IX coordinator, defends the process and the school’s Title IX resources.
In addition to Harrell, USA also employs Title IX specialists, graduate assistants and deputy coordinators. Its sexual misconduct policy is posted online, it requires all incoming students to complete a sexual assault prevention online training course, and it offers resources for complainants and respondents in Title IX cases. But the school does not compile data on its Title IX proceedings, and could not readily provide information about the frequency of complaints or the results of adjudication.
“USA’s Title IX policy is reviewed annually for any areas of improvements that have come to our attention over the previous year,” Harrell offered. “More significant, substantive changes have been made as guidance has been issued by the Department of Education which necessitate such changes.”
Harrell said while the resources provided to complainants and respondents are different, they are also equitable.
“Advocates for complainants are a pool of specially trained support persons who serve as a link between campus and community resources for individuals who report sexual violence,” she said. “They provide emotional support and resources, attend meetings and hearings as well as in coordinating services such as filing a police report, medical treatment, academic assistance and counseling services. Respondents’ resources are a pool of specially trained support persons who can accompany the respondent at every stage of the proceedings, including interviews, meetings and hearings.”
Regardless of the nature of the allegations, Joe Cohn said the new Title IX guidelines are an improvement for all parties involved. Cohn is the legislative and policy director at the Foundation for Individual Rights in Education (FIRE), a nonpartisan organization whose mission is to “defend and sustain” freedom of speech, freedom of association, due process, legal equality, religious liberty and sanctity of conscience on America’s college campuses.
“In 2011, the Department of Education issued guidance that should not have had the legal force of law,” he said. “The Department of Education was treating the guidance as if it was binding and threatening schools to pull their funding if they didn’t abide by it. The difference between guidance and regulations is that regulations go through a full process of getting stakeholder input. That wasn’t done until after 2017 and [the new regulations] provide students with all sorts of meaningful procedural rights that benefit both the accused and the complainants.”
Cohn said ED never actually pulled a higher education institution’s funding because of Title IX violations, but because the threat was there, “the schools were being forced to abide by [the ‘Dear Colleague’ letter] despite the procedural irregularities and the substantive problems in the document.”
“I think the key thing here is that there’s a narrative out there that due process harms complainants and that reducing procedural protections is necessary so that hearings aren’t traumatizing to complainants,” Cohn said. “But at the end of the day, the Constitution and morality both require that we treat people who are accused of heinous infractions that could end their entire educations and careers with regulations that require they’re entitled to meaningful due process. We can’t cut corners.”
Meanwhile, the regulations may remain prone to political pressure. On March 8, President Joe Biden issued the “Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.” Within, he requires ED to review the policies enacted during the Trump administration and “consider suspending, revising or rescinding … those agency actions that are inconsistent with the policy set” under the Biden administration. But Cohn believes the new regulations will stick.
“The truth of the matter is that the regulations can’t be so easily pulled; they’re the product of lengthy deliberations and input, and the substance of them are drawn from many, many court opinions that are also binding anyway,” he said. “The department can’t lawfully go back to the days when due process was set aside by the federal government.”
In his criminal case, Spring Hill student Kokali waived an arraignment and was released from jail on $75,000 bond, but he has a preliminary hearing scheduled April 28. Soto, Kokali’s Title IX attorney, said he expects the Title IX hearing to be resolved before the criminal charges.
“I was told to expect a timeline of 60 days or something like that, so we’re working on it,” he said.
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