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August 27, 2013

Suing over Star Chamber Hearings

Vassar.jpg
By Hans Bader

Recently, two male students sued colleges that expelled or suspended them over allegedly false claims of sexual misconduct. Citing school officials' repeated violation of rules contained in student handbooks and college regulations, they argue that Vassar College and Saint Joseph's University violated their contractual rights, Title IX (which bans sex discrimination), and anti-fraud laws.

Their legal claims seem plausible to me, as a lawyer who once handled discrimination claims for a living, including a stint at the Education Department's Office for Civil Rights.  But because they are male, their Title IX claims have been labeled as peculiar by feminist commentators.

Wendy Murphy, who had falsely branded the Duke Lacrosse players as rapists even after the case against them fell apart and their innocence became obvious, compared the male students' lawsuits to claiming victim status based on "whiteness."   Inside Higher Ed called the lawsuits "unusual," citing critics arguing that "Title IX protects the victim," not the alleged perpetrator, and is designed to protect women, who have "historically have been victimized," rather than men.  Bloomberg News quoted a feminist academic who disparaged the Saint Joseph's lawsuit as "odd" and presumed the student's guilt as an "offender," saying that "typically," "it's not the offender who's suing under Title IX, it's the . . . alleged victim."

But there's nothing peculiar about the idea that discrimination against male students is illegal.  Indeed, judges have repeatedly ruled that males can sue under Title IX and other federal laws when they are wrongly disciplined for sexual harassment based on their sex.  A 1982 Supreme Court decision ruled that Mississippi University for Women illegally denied a male student admission based on his sex.

These lawsuits both appear to contain valid legal claims.  Take the lawsuit filed by Peter Yu, who is suing Vassar.  Yu was expelled in 2013 for a sexual encounter that occurred while he and his accuser were allegedly intoxicated.  According to his complaint, Yu was found guilty even though his accuser waited a year to accuse him of sexual assault, and there were numerous, cordial Facebook exchanges between him and the accuser during that year.  In doing so, Vassar essentially ignored messages between the accuser and Yu in which the accuser discussed the evening, apologized to Yu, and invited him to dinner. Vassar gave Yu almost no time to mount a defense: he was found guilty and expelled from the college two-and-a-half weeks after the complaint was filed.  Moreover, it denied him the right to an attorney, and limited his ability to introduce exculpatory evidence at the hearing.

Yu's complaint plainly states a Title IX claim against Vassar.  Yu's allegations against Vassar - that "males accused of sexual harassment at Vassar are 'historically and systematically' and 'invariably found guilty, regardless of the evidence, or lack thereof"  -- are precisely what an appeals court in 1994 found to be a sufficient basis for a Title IX lawsuit in another case involving Vassar, Yusuf v. Vassar College. As it noted then, "the allegation that males invariably lose when charged with sexual harassment at Vassar provides a verifiable" statistical sign of sex discrimination.

Similarly, that same court ruled in 2009 that a male plaintiff's discrimination claim was strong enough to go to a jury where he was disciplined for sexual harassment based on a gender stereotype that presumed males have a propensity for harassment.  In its ruling in Sassaman v. Gamache, it emphasized that federal civil-rights law "requires that, in the course of investigating" sexual harassment claims, institutions "do not presume males to be 'guilty until proven innocent' based on invidious sex stereotypes."

In the past, Vassar has virtually endorsed such a presumption of guilt, claiming that even false rape allegations  have beneficial consequences, such as greater rape awareness and "self-exploration" by accused males.  In 2001, a Vassar administrator argued that rape claims can have "value" even when they are inaccurate, and that the "pain" caused by false claims can be "good."  As Time Magazine noted:

Catherine Comins, assistant dean of student life at Vassar, also sees some value in this loose use of "rape." She says angry victims of various forms of sexual intimidation cry rape to regain their sense of power. "To use the word carefully would be to be careful for the sake of the violator, and the survivors don't care a hoot about him." Comins argues that men who are unjustly accused can sometimes gain from the experience. "They have a lot of pain, but it is not a pain that I would necessarily have spared them. I think it ideally initiates a process of self-exploration. 'How do I see women?' 'If I didn't violate her, could I have?' 'Do I have the potential to do to her what they say I did?' Those are good questions."

A "de facto presumption" of guilt also is alleged in the other lawsuit, brought by Brian Harris against Saint Joseph's University.  Harris was suspended, he says,  for consensual sex.  He was found guilty even though the accuser (via text message) invited Harris to her dorm room to spend the night, and implied in writing they'd have sexual intercourse. No medical evidence existed of a crime, nor were there any witnesses. (SJU counsels people to "always remember to . . .  believe" a rape claim rather than reacting with skepticism. "It is extremely important to believe a survivor by verbalizing your belief."  Its brief urging the court to dismiss Harris's lawsuit makes arguments that KC Johnson rightly calls "extraordinary."

By allegedly violating college rules, procedures, and representations to students, Saint Joseph's and Vassar subjected Yu and Harris to legalistic ambushes that interfered with their ability to submit evidence of innocence.  These violations plainly state a claim for relief under court rulings like McConnell v. LeMoyne College (2006), which make clear that "when a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension of expulsion, that procedure must be substantially observed."

Unfair campus disciplinary proceedings that mistreat male students are disturbingly common.  (The Foundation for Individual Rights in Education notes that "campus sexual misconduct hearings increasingly lack fundamental fairness," and Brett Sokolow, a consultant who advises schools on how to get rid of accused rapists, admits that "colleges now are expelling and suspending people they shouldn't.")

But lawsuits like those brought by Yu and Harris are nevertheless fairly infrequent.  Why? Money. Lawsuits by railroaded male students typically don't generate a verdict big enough to  pay the lawyer's bills, making it hard for students to find a lawyer unless they have a wealthy family.  (Courts only order the college to pay the student's attorneys fees if the student proves discrimination, not just breach of contract).

For example, when a male student successfully sued the University of the South after being declared a rapist, which harmed his career prospects, he received only $26,500 in compensation.  That's likely less than what his attorneys charged to bring the case.   (By contrast, when a minority student sued a school for racial harassment in the Zeno case, he got a million dollars, and the school had to pay his lawyers, too. ) Because lawsuits over them are not lucrative, violations of male college students' rights usually go unremedied.

(Photo: Vassar College. Credit: Kirchhoff-Consigli.)


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