- The Washington Times - Thursday, July 28, 2016

An increase in high-dollar settlements and court rulings against universities this year — levied by both accused and accusing students — shows that colleges increasingly are being found at fault for how they handle allegations of sexual assault on campus, legal experts say.

A Georgia Tech University student who settled his case against the school for $125,000 earlier this month is the latest indication that courts are holding colleges accountable for failing to uphold the due process rights of students accused of sexual assault.

Heightened pressure from the courthouse comes after intervention from the Department of Education’s Office for Civil Rights about how universities must adjudicate allegations of sexual assault.

Samantha Harris, director of policy research for the Foundation for Individual Rights in Education, said the agency is still investigating an “unprecedented” number of colleges for failing to comply with Title IX, the federal statute banning sex discrimination in education.

With all of these forces converging on the university, you do “not want to be a college administrator right now,” Ms. Harris said.

“They’re under fire from all sides, and they’re in a very difficult position,” she said. “I think in a lot of cases they’re in over their heads, because I do not think most universities are well-equipped to adjudicate these very complicated cases.”

Since 2011, when the Office for Civil Rights issued its “Dear Colleague Letter” regulating how colleges must adjudicate accusations of sexual assault, the Foundation for Individual Rights in Education has tracked more than 110 lawsuits filed against universities by students found responsible for sexual assault.

The Dear Colleague Letter said, among other things, that universities must adjudicate such reports under a “preponderance of the evidence standard.”

Cynthia P. Garrett, an attorney at Families Advocating for Campus Equality, said she has seen an uptick in lawsuits resulting in “positive” outcomes for accused students.

This often takes the form of courts refusing to dismiss lawsuits brought by students against their universities, allowing trials to proceed to discovery, she said.

“Many cases which reach this stage settle, presumably because institutions do not particularly like to have their ‘dirty laundry’ aired in public during discovery,” Ms. Garrett said.

Such a settlement was reported on Monday between Georgia Tech and a bisexual student who was expelled after the university found him responsible for sexually assaulting another male student.

After the bisexual student filed a lawsuit over the ruling, the University System of Georgia ordered the school to reinstate him in January. The student settled his lawsuit against the university earlier this month for $125,000.

“What we’ve seen a lot is, if a case survives a motion to dismiss, it often seems that it’s settled, which would suggest to me that the plaintiff in that case settled from an advantageous position, with the court having just refused to dismiss the university’s case,” Ms. Harris said.

The Georgia Tech settlement comes just a few months after a judged ruled against the University of Southern California for improperly suspending a student who was not accused of sexual assault.

Despite the lack of an allegation, the school said the student had violated the sexual misconduct policy when he failed to stop others from sexually assaulting a woman during group sex.

“Thus far in 2016, I am aware of 11 lawsuits filed by students subjected to campus sexual assault misconduct disciplinary proceedings which courts have allowed to proceed and/or granted a temporary restraining order or injunction,” Ms. Garrett said, noting that figure already trumps those from each of the previous four years.

But it’s not just accused students who are suing their universities for how they adjudicate sexual assaults. Earlier this month, a group of eight women agreed to settle their case against the University of Tennessee in Knoxville for a total of $2.48 million.

As a part of the settlement, the plaintiffs agreed to withdraw two complaints with the Office for Civil Rights. But the agency can still take federal action against the University of Tennessee if it so chooses.

Ms. Harris said the problem is not likely to go away anytime soon. She said colleges are structurally unable to handle these disputes in a way that guarantees both parties a fair hearing, pointing to their lack of subpoena power and inability to collect forensic evidence.

“A lot of times, particularly these cases where the parties knew one another and have no witnesses, these are cases that turn entirely on the credibility of the two parties,” she said.

Still, there are reforms that colleges can implement to mitigate the problem.

“One thing is the right of both parties to be represented by an attorney or, at least, active participation of a representative of their choosing whether or not that person is an attorney,” Ms. Harris said. “Right now, a lot of schools do allow you to have some kind of representative, but oftentimes that representative is not allowed to participate in any way, which is one of the things that makes the cross-examination so difficult.”

Additionally, universities are uniquely equipped to grant accommodations to students while allegations of assault are pending, she said, such as changing class schedules and issuing no-contact orders.

“But I wouldn’t say we advocate universities remain involved in these things,” Ms. Harris said.

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