Complaints and Lawsuits

The 2011 Dear Colleague Letter on sexual violence has triggered a wave of complaints (almost all by identified victims of sexual assault) and lawsuits (by identified victims and accused students. The totality of lawsuits filed by men and women alleging inadequate and biased college proceedings argues that campus-based adjudication systems are inherently flawed.

COMPLAINTS BY IDENTIFIED VICTIMS

Numerous identified victims of sexual assault, dissatisfied with how universities handled their allegations, have filed complaints with the federal Office for Civil Rights. Over a five-year period, the number of sex-related (Title IX) complaints increased from 391 cases in FY2010 to 2,354 cases in FY2014, representing a dramatic six-fold increase.

Appendix A of the SAVE report, Six-Year Experiment in Campus Jurisprudence Fails to Make the Grade, highlights the mistreatment of numerous identified victims by their universities. The common denominator of all these cases is the inherent conflict of interest of college administrators, whose first loyalty is to maintain and promote a positive reputation of the institution. In addition, college investigators lack adequate training in the collection, analysis, and preservation of forensic evidence; nor do campus adjudicators possess expertise in how to resolve complex “he-said, she-said” cases. Finally, the strongest punishment that schools can deliver is expulsion.

If the existing system of campus rape tribunals was working as promised, one would expect to see a decreasing number of OCR complaints and investigations, compared to the pre-2011 period, as identified victims found their cases were more likely to be resolved in a prompt and fair manner. The burgeoning number of complaints and investigations point to a system of campus-based investigations and adjudications that are increasingly viewed as ineffective, even antithetical, to the national effort to end campus rape.

LAWSUITS BY ACCUSED STUDENTS

Over 130 lawsuits by students accused of, or expelled for, sexual assault have been filed against colleges and universities. These lawsuits have alleged breach of contract, sex discrimination, due process infringements, and other violations. A listing of recent cases and documents can be seen HERE.

Several analyses of these lawsuits have been published:

Listing of Court Decisions: 1993-2015

The cases listed below meet three criteria:

  1. College student was accused of sexual misconduct
  2. Student filed a lawsuit against the university regarding its involvement in the case
  3. Court of law issued a ruling

In approximately seven out of 10 cases, the court ruled at least partly in favor of the accused student, or allowed the case to proceed because the pleadings were sufficient to state a cause of action. In many cases, the ruling was followed by a confidential out-of-court settlement. More documentation about the lawsuits can be found in the Database of Due Process Lawsuits Against Colleges and Universities. The cases are arranged in reverse chronological order:

2015:

  1. Agnes Scott College, Decatur, GA: Amanda Hartley, a student at the University of Tennessee, was criminally charged with the sexual assault of a female student at Agnes Scott College, arrested, and incarcerated. It was later determined that all allegations were fabrications. Hartley filed suit against the College. The College’s motion to dismiss was denied by the trial court. The trial court decision was appealed to the Georgia Court of Appeals and then to the Supreme Court. In 2015 the Court of Appeals reversed itself, allowing the lawsuit against the College to proceed.
  2. Appalachian State University, Boone, NC: Based on a sexual harassment complaint, Lanston Tanyi was banned from playing collegiate football. Tanyi filed a complaint alleging sex discrimination and due process violations. The Western North Carolina District Court allowed the due process claim to proceed, finding that “students at public universities maintain protected property interests in their continued enrollment,” and that “[s]tudents facing school discipline also possess a liberty interest in their reputations.” The case was later settled for $100,000.
  3. Augustana University, Sioux Falls, SD: Koh Tsuruta was charged with sexual assault both criminally and at the college. The college suspended him, pending the outcome of its internal investigation. The student requested the college to stay its internal proceeding, pending the outcome of the criminal case, which was refused by the college. The South Dakota District Court denied his request for a preliminary injunction.
  4. University of California, Davis: Without holding a hearing, the university suspended a male student on an allegation of sexual misconduct, and ordered him to stay out of the entire city of Davis. The Yolo County Superior Court granted a motion to stay the interim suspension, ruling “due process has been completely obliterated by the University’s failure to get this case adjudicated…if anyone has failed the alleged victim in this case, [it] is the University.”
  5. University of California-San Diego:  A male student was suspended based on an allegation on non-consensual sex. Concluding “the hearing against petitioner was unfair,” the Superior Court of California found serious procedural flaws in the university’s handling of the case including its reliance on the single investigator model:  “It was the panel’s responsibility to determine whether it was more likely than not that petitioner violated the policy and not defer to an investigator who was not even present to testify at the hearing. ‘Due process requires that a hearing…be a real one, not a sham or pretense.’”
  6. University of Cincinnati, OH: Two women filed charges with the university and local police that they had been raped by Ethan Peloe. Even though the grand jury refused to indict Peloe, the university decided to dismiss him. The Court of Common Pleas granted a temporary restraining order enjoining the university from “continued disciplinary actions.”  The case was removed to the Southern Ohio District Court, which  granted the university’s motion to dismiss.
  7. Columbia University, New York, NY: A male student was accused of nonconsensual sexual activity and suspended for one and a half years. He sued, alleging sex discrimination. The Southern New York District Court granted the university’s motion to dismiss.
  8. Iowa State University, Ames: Yempabou Palo was suspended from the ISU basketball team in 2012 during the proceedings of criminal charges of sexual assault against fellow student H.B. The criminal charges were dropped in early 2013. The allegations were also considered by the university’s Administrative Law Judge, who ruled the accusations were “not founded.” The decision was appealed to the ISU president and then the Iowa Board of Regents, which ruled in late 2013 that Palo would not be allowed to participate in intercollegiate athletics. In 2014 the Iowa District Court stayed the Board of Regents’ decision. In 2015 the Iowa Court of Appeals dismissed the appeal by the Board of Regents, saying the case was moot because Palo had already graduated.
  9. Knox College, Galesburg, IL: Following an allegation of sexual misconduct, Jack Blank was suspended for two terms. Blank filed a lawsuit alleging breach of contract and sex discrimination. The Illinois District Court ruled it did not have jurisdiction over the breach of conduct claim, and granted the college’s motion to dismiss for the sex discrimination claim.
  10. Miami University, OH: Accused of sexual assault by Alexis Prenzler, Matthew Sahm was expelled from the university. Sahm sued the university, alleging Title IX and other violations. The Southern Ohio District Court granted the university’s motion to dismiss.
  11. University of Michigan, Ann Arbor: Drew Sterrett alleged numerous due process violations by the university. The Michigan District Court held that the university’s procedures may have violated the plaintiff’s due process right to adequate notice, and his due process rights for denying him a hearing after he had specifically requested one.
  12. Middlebury College, VT: Following a decision to expel the plaintiff, the male student filed a breach of contract action, alleging “Middlebury’s investigation and decision were biased, unfair, and discriminatory and in violation of Middlebury’s policies.” The Vermont District Court issued an emergency preliminary injunction allowing the plaintiff to attend fall classes.
  13. Salisbury University, MD: Suspended from the university, a male student filed a Title IX complaint alleging his suspension was motivated by his gender. A few months later  he reapplied to the university. During the reapplication process, the university opened a Title IX investigation into the student’s alleged involvement in a sexual assault which the university had investigated years earlier without charging the student. The student filed a lawsuit against the university alleging retaliatory violations of Title IX and other charges. The Maryland District Court rejected the university’s motion to dismiss.
  14. University of Southern California, Los Angeles: Football player Bryce Dixon was expelled on an allegation of sexual assault. The Los Angeles Superior Court reversed the expulsion, ruling that the university’s adjudication process was fundamentally unfair to accused students.
  15. University of South Florida, Tampa: A male student was suspended based on allegations of sexual assault by his ex-girlfriend. The student brought a due process and a Title IX claim against the university. The Florida District Court rejected his due process claim on the grounds that it was premature to sue the university for lack of due process without first exhausting the university’s appeal procedures; and disallowed the Title IX claim because the student had not demonstrated intentional discrimination.
  16. University of Tennessee-Chattanooga: Accused of rape, nationally ranked wrestler Corey Mock was precluded from participation in collegiate athletics. The Chancery Court of Davidson County, Tennessee noted that the university’s affirmative consent standard was unfair because the rule “erroneously shifted the burden of proof” to the defendant, robbing the student of his due process rights, and that “requiring the accused to affirmatively provide consent… is flawed and untenable if due process is to be afforded to the accused.”
  17. Vassar College, Poughkeepsie, NY: Two and a half weeks after a complaint of sexual misconduct was filed, Peter Yu was expelled. Yu sued the College on charges of sex discrimination and other state law causes of action. The Southern New York District Court granted the College’s motion for summary judgement.
  18. Washington and Lee University, Lexington, VA: Two students had a sexual encounter. The female student later attended a presentation which advanced the idea that “regret equals rape.” She then filed a sexual assault complaint against the male student, resulting in his expulsion. Ruling in favor of the student’s Title IX claim, the Western Virginia District Court concluded the university’s bare-bones adjudication processes served to “railroad” students who are wrongly accused of sexual assault.

2014:

  1. DePauw University, Greencastle, IN: Following an alcohol-fueled incident of sexual contact at a fraternity followed by a complaint of non-consensual sexual assault, the university ordered a one-year suspension of Benjamin King. The Southern District Court of Indiana granted King a preliminary injunction allowing him to return to school.
  2. Duke University, Durham, NC: Senior Lewis M. McLeod was expelled for sexual misconduct shortly before final exams, thus preventing his imminent graduation. The Superior Court issued a preliminary injunction against the expulsion, ruling that Duke “breached, violated, or otherwise deprived [McLeod] of material rights related to the misconduct allegations against him and the resulting disciplinary process addressing such allegations.”
  3. Marlboro College, Brattleboro, VT: The Sexual Misconduct Panel determined Luke Benning to be responsible for nonconsensual sexual misconduct.  Upon internal appeal, the Dean’s Advisory Committee found three “serious material errors” in the Panel’s proceedings, and reduced the sanctions to a three-semester suspension. Benning filed a lawsuit alleging reputational harm and other injuries. The Vermont District Court allowed several allegations in the lawsuit to proceed.
  4. Philadelphia University, PA:  Expelled on an allegation of sexual assault, Anthony Villar filed a lawsuit alleging sex discrimination, breach of contract, emotional distress, and defamation. The Eastern Pennsylvania District Court denied the university’s motion to dismiss.
  5. Saint Joseph University, Philadelphia, PA: Brian Harris filed a suit alleging that a member of the campus disciplinary committee stated that the university had “adopted a policy favoring female accusers as SJU was concerned about Title IX charges by female students.” The Eastern Pennsylvania District Court allowed the plaintiff’s Title IX claim to proceed, holding that “[a]llegations such as statements by members of the disciplinary tribunal or pertinent university officials are sufficient at this stage of the proceedings to support a Title IX claim.”
  6. Swarthmore College, Swarthmore, PA: A male student was accused of a coercive kiss and other “physical encounters.” After a two-month investigation, the school closed the matter without bringing charges. Later the Swarthmore president announced a “zero tolerance” policy for sexual assault. A few weeks later his case was re-opened, this time finding him guilty of sexual misconduct. The student sued, alleging multiple violations of the college’s policies and denial of due process. Acknowledging “questions about the impartiality of the College Judiciary Committee Panel,” the Eastern Pennsylvania District Court announced a joint motion for dismissal.
  7. Xavier University, Cincinnati, OH: Following an allegation of sexual assault, basketball player Dez Wells alleged that as a male student, he “was fundamentally denied due process as to be virtually assured of a finding of guilt.” The Southern Ohio District Court denied the university’s motion to dismiss, holding that Wells had sufficiently alleged “a pattern of decision-making that has ultimately resulted in an alleged false outcome that he was guilty of rape.”

2013:

  1. Temple University, Philadelphia, PA: Tyler Johnson was found guilty of violating the university’s Sexual Assault Policy and suspended for two semesters. Johnson sued, alleged due process violations and breach of contract. The District Court of Eastern Pennsylvania granted the university’s motion to dismiss.
  2. Tulane University, New Orleans, LA: Following an acquittal of criminal charges of sexual assault, Tulane University conducted a three-day hearing and suspended I.F. for his entire senior year. The student’s petition was denied by the trial court. The case was appealed to the Fourth Circuit Court of Appeal and remanded to the trial court. Following an adverse ruling, the case was appealed a second time to the Court of Appeal, which reversed the trial court’s decision, ruling that I.F.’s “procedural due process rights were ill-defined, ambiguously applied, and, as such, presumptively violated.”
  3. Vermont Law School, Burlington: Accused of sexual misconduct, the college panel found that the charges against Joshua Vaughan were unfounded. Vaughan then sued the college for disclosing private information about the complaint to the VLS community. The District Court denied all of plaintiff’s motions and the Second Circuit Court of Appeals affirmed.

2012:

  1. Duke University, Durham, NC: In 2007,  former Duke University lacrosse players David Evans, Collin Finnerty, and Reade Seligmann threatened to file a lawsuit against Duke University, which resulted in the University agreeing to a settlement, reportedly paying the former players $18 million. The following year, 41 other former members of the team filed a lawsuit against the University, former prosecutor Michael Nifong, and the Durham Police Department. In 2012 the United States Court of Appeals, Fourth Circuit ruled on the case, dismissing all of the federal claims and upholding some claims under North Carolina law. The court ruling set the stage for two subsequent out-of-court agreements:
    • In 2013, 38 of the former players, collectively known as the “Carrington plaintiffs,” reached a settlement with Duke University for an undisclosed amount.
    • In 2014, the three remaining players — Ryan McFadyen, Matthew Wilson, and Breck Archer — agreed to a confidential settlement with the University.
  2. University of Montana, Missoula: John Doe was expelled on charges of sexually assaulting a fellow student at an off-campus residence. Doe filed claim seeking a preliminary injunction against the university investigator’s continued involvement in the case. The Montana District Court ruled against the student’s request on technical grounds. The judge also noted that the university’s investigation and prosecution of the case “offends the Court’s sense of fundamental fairness and appears to fall short of the minimal moral obligation of any tribunal to respect the rights and dignity of the accused.”

2011:

  • University of the South, Sewanee, TN: One day after he was informed of the allegation, a male student was found responsible of violating the school’s sexual assault policy and expelled. Doe filed a lawsuit seeking $5.5 million for alleged breach-of-contract. Following a seven-day trial, the plaintiff was awarded $26,500 after a federal jury found the private institution was negligent in conducting the disciplinary hearing.

2010:

  • University of Minnesota, Duluth: Noah Berge was found responsible for sexual assault by the Campus Committee on Student Behavior. The decision was reversed by the Provost’s Appeal Committee because the CCSB prohibited Berge from presenting relevant testimony. The Provost then reversed the decision of the Appeal Committee. The Minnesota Court of Appeals ordered a new campus hearing, ruling the CCSB decision was “arbitrary and capricious.”

2005:

  1. Colby College, Waterville, ME: Kevin Millien was expelled on allegations of sexual assault. He appealed to the Superior Court and Maine Supreme Judicial Court, both of which upheld the expulsion.
  2. University of Maine, Orono: Stefan Gomes and Paris Minor were suspended for one year on allegations of sexual assault. On appeal, the Maine District Court upheld the suspension, noting, “Although the University’s disciplinary process was not ideal and could have been been better, this Court concludes it was fundamentally fair and accorded the Plaintiffs the essential elements of due process.”
  3. Shippensburg University, PA: Travis Ruane was suspended for two years on allegations of sexual assault. Ruane sued, alleging lack of due process and challenging the sufficiency of the evidence. The Commonwealth Court of Pennsylvania found in favor of the university.

2001:

  • Gonzaga University, Spokane, WA: Based on hearsay allegations of sexual assault, a university administrator decided to not sign the moral character affidavit for John Doe’s teaching certification, thus harming his future employment opportunities. Following a trial in the Spokane County Superior Court, the jury awarded plaintiff Doe $1.1 million in damages, plus attorneys’ fees. The Washington Supreme Court upheld the verdict for claims of defamation, invasion of privacy, violation of FERPA rights, and breach of contract.

2000:

  • Brandeis University, Waltham, MA: David Schaer was expelled on charges of sexual misconduct. Schaer sued the university for denial of due process rights. Although the Supreme Judicial Court of Massachusetts affirmed the precedent that rights guaranteed to students in college handbooks have the force of contract, the Court ruled in a split decision that Brandeis had met its legal obligation to Schaer in his disciplinary hearing.

1997:

  • State University of New York at Cobleskill College: Kelley Scott accused the plaintiff of forcing her to have sex. The plaintiff was arrested and charged with misdemeanor sexual misconduct. The criminal charge was later dismissed “by reason of the absence of any allegation or evidence of forcible compulsion.” During the college hearing, Scott and the plaintiff were instructed they should only address the panel and not each other due to the sensitive nature of the charges. A two-year suspension was imposed. The Northern New York District Court later ruled that “due process required that the panel permit the plaintiff to hear all evidence against him and to direct questions to his accuser through the panel.”

1994:

  1. Middlebury College, VT: Ethan Fellheimer was suspended by the college for one year based on a finding that he was “guilty of disrespect for persons, specifically for engaging in inappropriate sexual activity with Vanessa Huth.” The Vermont District Court ruled that the College’s lack of notice of what conduct constituted “Disrespect of Persons” violated its obligation to Fellheimer, ordered that the student record be expunged,  and allowed the case to be reheard.
  2. Vassar College, Poughkeepsie, NY: Syed Yusuf was assaulted by his roommate, James Weisman, sustaining significant medical injuries. When Yusuf announced he planned to pursue a criminal prosecution, Weisman’s girlfriend, Tina Kapur, accused Yusuf of sexual harassment, resulting in a one-term suspension of Yusuf. The Southern New York District Court dismissed Yusuf’s claims in their entirety. The Second Circuit Court of Appeals reversed the district court’s dismissal of Yusuf’s Title IX claim and reinstated Yusuf’s supplemental state law claims.

1993:

  • Tulane University, New Orleans, LA: Sean Ahlum was suspended for one semester based on an allegation of sexual assault. Ahlum filed for relief in Civil District Court, which granted him a temporary restraining order allowing him to take his semester examinations. Tulane appealed this judgement to the Louisiana Court of Appeal, which reversed the District Court decision.