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July 12, 2013

Why the St. Joe's Lawsuit Matters

I previously wrote about the federal lawsuit filed against St. Joseph's University (and accuser Lindsay Horst) by former St. Joe's student Brian Harris. (You can read the complaint here.)  Here are three reasons why the lawsuit could be significant.

Burden of Proof. Critics of the 2011 "Dear Colleague" letter have focused on the OCR's mandate that colleges reduce the burden of proof in sexual harassment and assault claims (and only in such claims) from the clear-and-convincing standard (around 75 percent) to the preponderance of evidence (50.01 percent). The Horst/Harris case is a good demonstration of the difference between the two standards.

At St. Joe's, the accuser (via text message) invited the accused to her dorm room, implied in writing they'd have sexual intercourse, and invited him in writing to spend the night. No medical evidence existed of a crime, since accuser Horst never sought medical attention. There were no witnesses to the students' intercourse, though Horst did speak to another dorm resident at some point in the evening. It's conceivable that despite the text messages and the lack of physical evidence, a disciplinary panel predisposed to believe accusers could conclude there was a 50.01 percent chance Horst was telling the truth. But it's hard to imagine that even a system as procedurally biased as the one at St. Joseph's could conclude there was a 75 percent chance she was telling the truth. Lowering the burden of proof increases the number of convictions--which seems to be exactly what at least some defenders of the new standard want.

Administrators. The recent parade of Title IX lawsuits--dutifully reported, stenographer-style, by Richard Pérez-Peña in the New York Times--have portrayed that student life and judicial affairs administrators at many leading colleges and universities as indifferent, or even hostile, to students who report they've been sexual assaulted. These claims have been accepted uncritically in virtually all press coverage of the filings. (A note: there's been no coverage of the St. Joe's lawsuit in the New York Times, even though Harris is from New York.)

It's certainly possible to imagine scenarios (a student claiming sexual assault against a star football player at Alabama or Nebraska, or perhaps a student claiming sexual assault against the son of a multi-million dollar donor) in which administrators might try to sidetrack a sexual assault claim. But the idea that student life administrators--armed with a reputation as paragons of political correctness--are routinely hostile to sexual assault accusers is all but absurd. Far more plausible is the behavior laid out by Harris in his complaint, in which St. Joe's student life investigator allegedly implied a connection between Harris' behavior and that of pedophile Jerry Sandusky, and, the complaint alleges, misreported what Harris told him about the night in question.

Gender Discrimination. In an article on Harris' filing, Bloomberg turned to Susan Stuart, a professor of education law at Valparaiso and author of the forthcoming law review article, "Warriors, Machismo & Jockstraps:  Sexually Exploitative Athletic Hazing and Title IX in the Public School Locker Room." Stuart termed Harris' lawsuit "an odd sort of situation," since "what I typically see are cases in which it's not the offender who's suing under Title IX, it's the individual who's been the alleged victim." It's not clear how Stuart concluded that Harris is an "offender," since he was never charged with a crime, much less convicted of one. Stuart dismissed Harris' chances: "I don't see any factual allegations that males as a general rule are being picked on. The process seems to be gender bias-free."

It's true, I suppose, that a rigged disciplinary process isn't necessarily an example of gender bias, since women, too, can be accused of sexual assault. But, from the other side, men, too, can be victims of sexual assault. By Stuart's logic, then, OCR's decision to link Title IX (a gender bias statute) with demands to minimize due process protections for students accused of sexual assault would be out of bounds. Arguing that minimal due process protections discriminate against women, as OCR has done, must open up the sort of claim that Harris is making in his lawsuit.

The Horst/Harris case, in short, is a case to watch.

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