As federal officials look to revise guidance for handling allegations of sexual misconduct on college campuses, the University of South Alabama is facing a lawsuit filed by a student who says his rights were violated when USA found him responsible for two reported sexual assaults.
The lawsuit alleges the processes USA used to investigate the allegations against the male student relied heavily on “hearsay” testimony, biased administrators and a closed-door hearing led by a panel of improperly trained students and faculty members.
While this appears to be the first case of its kind in Alabama, it follows a trend of lawsuits filed around the country by college students — predominantly men — who claim their respective college’s policies for sexual misconduct investigations under Title IX are fundamentally unfair.
Title IX was enacted to prohibit sex-based discrimination, but its application has expanded over the years as courts and the United States Department of Education’s Office for Civil Rights (OCR) have classified sexual misconduct as a form of sex discrimination.
In 2011, as high-profile incidents pushed the issue of college sexual assault to the forefront of the nation’s conscience, President Barack Obama’s administration issued new guidance to universities for handling Title IX complaints of misconduct.
That guidance came in the form of a “Dear Colleague Letter” from the OCR, which, among other things, pushed schools to adopt a “preponderance of the evidence” standard when determining the culpability of students accused of misconduct, which is lower than the “clear and convincing” evidence standard used in criminal cases.
Since then, there have been more than 180 lawsuits filed by students who claim their due-process rights were violated by the college they were enrolled in. Many of the plaintiffs were expelled, suspended or placed on academic probation as a result of the allegations against them.
According to the Foundation for Individual Rights in Education (FIRE), the 2011 guidance, while voluntary, was issued as DOE began increasing Title IX investigations across the board. With federal funding contingent on Title IX compliance, FIRE Vice President of Policy Research Samantha Harris said most colleges took the DOE guidance as a directive, not a suggestion.
“The number of schools under Title IX investigations jumped from just 50 in 2014 to more than 200 as of June,” Harris told Lagniappe. “It wasn’t just the ‘Dear Colleague Letter,’ it was the climate. Universities were very fearful of triggering a Title IX investigation and possibly losing federal funding, so — formally or informally — many decided to take steps that made it easier to find students responsible for sexual misconduct, whether or not they were.”
Earlier this month, U.S. Secretary of Education Betsy DeVos announced plans to review and possibly revise the DOE’s 2011 guidance, claiming, despite “good intentions,” the Obama-era guidance had “failed” students accused of wrongdoing and victims of sexual assault alike.
However, groups dedicated to survivors of sexual assault quickly criticized DeVos’ plan to roll back those 2011 changes, with many calling her announcement this month “a step backward” from the recent progress made in addressing collegiate sexual assault.
Now, with a federal policy review as the backdrop, the lawsuit against USA has become all the more relevant in a highly contentious national discussion.
John Doe v. USA
The plaintiff, a male student identified only as “John Doe,” claims USA’s 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.
Like many universities, USA has a stand-alone policy guiding the procedures used to investigate and resolve reports of sexual assault. In the policy, USA vows to “promptly and thoroughly investigate and resolve all complaints of sexual misconduct” — an “umbrella term” for accusations including “sex discrimination, sexual harassment, sexual violence, domestic violence, dating violence, stalking and retaliation.”
Doe’s disciplinary hearings stemmed from accusations made by three female students who claim Doe committed sexual assault by having intercourse with them while they were under the influence of alcohol and without the ability to consent.
“If a person is incapacitated by alcohol or drugs such that the person cannot understand the fact, nature or extent of the sexual situation, there is no consent, even if the person self-administered the alcohol or drugs,” USA’s policy reads.
The first allegation against Doe stemmed from an encounter in September 2016 he described as a “mutual sexual threesome” between himself and two females identified in the lawsuit only as Jane Roe 1 and Jane Roe 2.
He claims he had had similar, consensual encounters at least twice before with both complainants. Weeks later, though, both women reported the final incident to USA’s Title IX coordinator as a sexual assault based on their inability to give consent at the time.
No criminal complaint was ever filed with the Mobile Police Department or USA’s campus police, according to the lawsuit.
Doe’s initial complaint, which can be read at lagniappemobile.com, only includes Doe’s recollection of the events from that evening as well as his account of another sexual encounter that caused a third female student to file a separate complaint of sexual misconduct against him.
It also discusses a previous allegation of sexual assault one of his accusers made against another male student, which was found to be unsubstantiated after a criminal investigation and a Title IX investigation conducted by the university.
While the details of those incidents were crucially important in Doe’s Title IX investigations, the lawsuit he filed against USA is more focused on the processes USA used to determine that he bore responsibility in both reported sexual assaults last year.
The outcomes and records of USA’s conduct investigations and hearings aren’t accessible to the public pursuant to the Family Educational Rights and Privacy Act, which protects the privacy of student educational records. In his lawsuit, though, Doe claims he was suspended for two semesters and placed on academic probation for the rest of his time at USA.
He also agreed to a mutual “no contact” order with his accusers and was required to complete several hours of community service. Since then, he claims to have been placed on leave from the ROTC program and says his scholarship for ROTC has been suspended. Unlike some at colleges, though, a “responsible” finding for a reported sexual assault is not noted on a student’s academic transcript, according to USA.Attorney Matt Green represented Doe throughout the university’s proceedings and in the resulting lawsuit has argued that a student accused of sexual misconduct at USA “faces a system that is biased at every step toward finding the student ‘responsible.’” Green also claims “one of the prime objectives of the disciplinary process is that the alleged victim be believed.”
The 2011 guidance from the Obama administration stressed the importance of taking allegations of sexual assault seriously from their onset, but USA has maintained its system is fair to all students.
According to USA’s policy, after a report of sexual assault is filed, an investigating officer looks into the allegations. If it’s determined misconduct occurred, the accused student can accept the findings of the investigation or have the matter adjudicated in a closed hearing before a University Disciplinary Committee.
A UDC is typically composed of faculty members and “students who serve in [Student Government Association] leadership positions,” and if the committee finds the accused “responsible,” it can also recommend sanctions. In cases involving sexual misconduct, USA’s policy states “the UDC will be composed of two to four faculty/staff and two to five students.”
UDC members also receive training on what type of activity does and does not constitute sexual assault — training a USA spokesperson said is “based upon source materials from national organizations ... ”
The lawsuit suggests USA’s policies are “biased” against students accused of sexual misconduct, but USA Director of Communications Bob Lowry said UDC panels have reviewed 10 cases of sexual misconduct in the past three years and the accused student has only been found responsible in three cases. Because the university cannot speak about specific cases, it’s unclear if those three “responsible” findings include both of Doe’s cases or just one.
USA has also claimed in recent court filings that Doe’s complaint fails to show any policy changed after the 2011 “Dear Colleague Letter” was “applied to him detrimentally or that is relevant” to his case.
“[The lawsuit] cites cases in which colleges failed to follow their own procedures, but those are distinguishable because here the University followed its policies,” one response from USA reads. “But even if one or more of the University’s policies were not followed to a ‘t,’ Doe cannot attribute such a failure to the Dear Colleague Letter.”
According to Lowry, those changes did have some effect on USA’s investigation and adjudication of alleged sexual misconduct, though he said the most notable change was “the equal opportunity for both parties to appeal [a] UDC decision.”
Lowry added, “Other provisions of the [2011 guidance] were already an integral part of university student-on-student sexual misconduct investigations.”
Yet students accused of sexual misconduct haven’t been the only critics of USA’s handling of sexual misconduct allegations. In 2015, a female student aired her criticism in the Vanguard student newspaper and in other local media.
That student, age 20 at the time, claimed local law enforcement dismissed two separate reports of sexual misconduct — one alleging rape and another alleged groping incident — and conduct hearings before a UDC yielded the same result.
So far, Doe’s lawsuit against USA had yet to progress very far, though a number of lawsuits filed against other universities have successfully overturned internal disciplinary decisions. As it proceeds through court, though, colleges all over the country will be waiting to see what new guidance might come down from DeVos’ department.
“We know this much to be true: one rape is one too many. One assault is one too many. One aggressive act of harassment is one too many. One person denied due process is one too many,” DeVos stated in a speech earlier this month. “This conversation may be uncomfortable, but we must have it. It is our moral obligation to get this right.”
Update: While preparing this report, Lagniappe sought input from USA’s Violence Prevention Alliance, Sexual Assault & Violence Educators (SAVE) group, Lifeline Counseling Services and a female USA graduate who filed sexaul midsconduct compalints against two male student — complaints she claims USA did no handle propperly.