In Verdict Against Sewanee, Federal Jury Sends Important Message About Proper Handling of Sexual Assault Cases
Liberty Alerts, TheFIRE.org
September 6, 2011
Last week, a federal jury in Tennessee delivered a key verdict in a former student’s suit against Sewanee: the University of the South after the school found him guilty of violating its sexual assault policy. In a decision that should send some rumblings through the world of higher education and make universities think twice about the way they adjudicate allegations of sexual misconduct and rape, the jury awarded $26,500 in compensatory damages to the former student for Sewanee’s negligence in mishandling his disciplinary hearing.
The case began with a female student’s 2008 accusation of rape. As The Chronicle of Higher Education reports, a faculty panel at Sewanee found the student responsible despite the fact that he never faced criminal charges. Filing anonymously under the name “John Doe,” the student sued the university in federal court, arguing that the accusation against him was false and that the university’s negligence in handling the matter ultimately harmed his reputation and career prospects. In finding for the former student, the jury initially arrived at a damages amount of $50,000, but reduced that figure to $26,500 because it deemed him 47 percent responsible himself for the negligent hearing. The jury also did not award him any money for his claims of injury to reputation and injury to earning capacity.
However, the bigger picture here is that the case is emblematic of how colleges and universities open themselves to liability if they are not careful to uphold the rights of both parties in an accusation of sexual misconduct or rape, and if their disciplinary procedures do not properly balance student due process rights with the need to address such allegations. One can be sure that while Sewanee will only have to pay $26,500 in damages, the cost to the university in reputation, attorneys’ fees, and so on will be far more.
We’ve been focused on this topic for some time here on The Torch, of course. Our emphasis stems from the federal Department of Education’s Office for Civil Rights’ (OCR’s) “Dear Colleague” letter of April 4, 2011, which placed a number of due process mandates for adjudicating sexual harassment and sexual violence at federally funded universities, most notably by imposing the comparatively low “preponderance of the evidence” evidentiary standard for such cases.
We’ve spoken and written at length about the fact that this standard pales in comparison to the more robust and appropriate standard of “clear and convincing evidence,” and that under OCR’s mandate, universities already employing constitutionally suspect definitions of sexual harassment and flawed procedures for sexual assault would be likely to only further erode students’ due process rights. We’ve highlighted these dangers when they have manifested themselves at institutions such as Stanford University and the University of North Dakota. (Indeed, the Sewanee case is, among other things, reminiscent of the University of North Dakota matter in that in the latter case, local law enforcement did not charge the accused student with any criminal violations; in fact, at UND, police charged the accusing student with lying to them.)
Now, the Sewanee case has taken things to a new level, with its imposition of a damages award against the university. Hopefully, the reverberations of this verdict will be felt far and wide as colleges and universities around the country contemplate whether the same thing could happen to them if they were to unjustly find a student guilty of sexual assault or sexual harassment. This includes private as well as public colleges, a point that our own Robert Shibley makes in the Chronicle article:
The jury’s conclusion that Sewanee was negligent in handling the case shows how important it is that universities have fair policies and administer them consistently, said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education.
“Students certainly have a right to expect private universities to conduct themselves in a way they say they’re going to,” Mr. Shibley said. “Just because a university is private doesn’t mean you don’t have duties to your paying students.”
In other words, while private colleges and universities are not bound by the same legal obligations to due process as are public institutions, they must nevertheless abide by their stated promises in policy and procedure. The Chronicle has more on this point:
However small the damages in the case, private institutions should take note of it because it serves as an important example of an elusive principle, said Gary M. Pavela, a lawyer and writer specializing in higher-education law. A private college is not subject to the same constitutional due-process requirements that a public institution is, Mr. Pavela said, but it can make itself vulnerable to being sued if it assumes it is above those requirements and is not fair to any party. That’s because creative lawyers can use language in a private college’s catalog that refers to due process and find ways to argue that an institution broke a contract, he said.
Mr. Pavela also echoes much of what FIRE has had to say in recent months regarding the importance of balancing students’ due process rights when addressing allegations of sexual misconduct, especially in the face of OCR’s April 4 guidance:
“The danger is that we forget the need to find a balance,” he said. “I think we have to pay a little less attention to whatever the fashion of the moment is and remember that we have to find a balance between competing interests. It’s very important to hear the case before you decide it.”
Yes, it certainly is, lest more institutions find themselves staring at a loss in court in the face as Sewanee did.