Colleges' crackdown on sex assaults provokes questions of fairness

It was nearly midnight on a crisp Friday in December, the week before finals, when a young man walked a young woman home to her dorm in St. Paul.

The pair, both students at the University of St. Thomas, had started flirting at a campus party where the alcohol was flowing freely. After several drinks, they made their way to a dorm lounge, where a security camera kept watch. Then they retreated to the most private of spaces — a small bathroom.

What happened there would haunt them both, and draw St. Thomas into a legal battle and a divisive national debate over the role of colleges in policing accusations of sexual violence.

This spring, the young man, identified only as "John Doe," sued the university, saying he was suspended for sexual assault without a fair hearing or even a lawyer to present his side of the story. It's one of a flood of lawsuits across the country asserting that colleges are trampling the rights of the accused in a rush to crack down on campus rape.

St. Thomas denies any wrongdoing. But increasingly, colleges and universities are finding themselves in the awkward position of trying to ferret out what really happened between students behind closed doors, often in alcohol-fueled encounters. And the stakes for getting it wrong have never been higher.

For the past five years, the federal government has threatened to cut off funds to any school that fails to respond quickly and aggressively to reports of sexual assault. Since then, it has launched more than 325 investigations against colleges and universities.

The result, says a growing chorus of critics, is that colleges are under pressure to brand students as rapists, and kick them out of school as quickly as possible, without the kinds of protections they'd find in a real courtroom.

"It's a tremendously unfair dynamic that's playing itself out," said Joseph Cohn, a civil liberties lawyer with the Foundation for Individual Rights in Education (FIRE). Colleges are "practically tripping over themselves to reduce due process so that they don't land on a [government] list of schools under investigation," he said. And the federal government is "taking an overwhelmingly one-sided approach to this issue."

At St. Thomas, officials say that there's nothing one-sided about it, and that they take pains to be fair to both sides in such emotionally fraught situations. The university, said Nora Fitzpatrick, an associate vice president, is trying to enforce a student code of conduct, not mimic a real courtroom, with battling lawyers and hostile questions. "This isn't a legal proceeding," she said. "We are trying to assist both parties and not retraumatize them by having it be a confrontational situation."

John Doe didn't see it that way. Once accused of sexual assault, he contends, he faced a "rigged and unfair disciplinary process" that was stacked against him from the start.

•••

To hear John tell it, the young woman approached him at a party at Brady Hall on Dec. 11, 2015. As fellow students, they barely knew each other; but as they talked, he would later say, they began holding hands and rubbing each other's backs.

By his own account, John, a freshman, had downed four mixed drinks in about 90 minutes that Friday evening. The young woman — identified as "Jane Doe" in the lawsuit — admitted to three shots of whiskey or rum.

They left together about 10:30 p.m. with a group headed for an off-campus house party. In John's version of events detailed in the lawsuit, Jane grabbed him in the backyard and they started kissing. Later, after walking to her dorm, they began making out in a second-floor lounge, where, according to him, she straddled him and bared her bra.

The next stop was her dorm room, where her roommate appeared to have been sleeping. The pair moved into the adjacent bathroom. Though their accounts would differ, both would describe a sexual encounter that ended after he requested oral sex and she refused.

The next morning, John texted a female friend: "So I hooked up with this girl last night and it was terrible and awful and a really bad decision ... Now I have no idea what to do."

"Was it bad sex or bad because you felt guilty and regretted it?" the friend wrote back.

"It was just awkward when it was over. It was bad and I also regret it a lot," he wrote. "I'm really just trying to figure out if I should text her and say something or not." The friend suggested a line he could use. "That's actually a really good idea," he replied.

Shortly after noon, he texted "Jane": "I'm really sorry about last night, I drank too much I didn't mean for anything to happen, I'm still not over my ex and I feel bad."

Her reply: "I'm really okay never discussing last night ever again."

"Agreed," he wrote.

•••

In 2009 and 2010, the Center for Public Integrity published a yearlong investigation about how rapists were going unpunished on college campuses. The six-part series, "Sexual Assault on Campus: A Frustrating Search for Justice," reported that even when students were found responsible for sexual assault, they faced "little or no punishment" from school judicial systems. Even repeat offenders were rarely expelled.

The series, a collaboration with National Public Radio, was hardly the first to shine a light on a problem that has roiled campuses for decades. But it took the federal government to task, saying it rarely investigated, and virtually never sanctioned, colleges for botching those cases.

The next spring, the Department of Education launched a new offensive against campus rape. In what became known as the 2011 "Dear Colleague" letter, it laid out pages of new guidelines for handling reports of sexual misconduct. Among other things, it "strongly" discouraged schools from allowing students to be cross-examined, saying that could traumatize and intimidate victims. It also says that schools should complete their investigations in about 60 days and use the lowest legal standard of proof — known as "preponderance of evidence" — to determine whether students have committed sexual assault.

With all the new rules came a warning. Any schools that failed to take reports of sexual violence seriously would be violating Title IX, the federal law against sex discrimination in education. That meant they could lose millions of dollars in federal funding.

It also made clear that campuses could not simply hand such cases over to police. They have a duty to investigate, whether or not the police become involved.

•••

On Dec. 14, 2015, John Doe received an ominous e-mail from his university: "This letter is to inform you that a complaint has been brought forward indicating that you may have violated the university sexual misconduct policy."

It was three days after his encounter with Jane. She had told St. Paul police that John had forced her into the bathroom and sexually assaulted her with his fingers.

John was arrested and released, as police began an investigation. For his part, he would maintain that the entire episode was consensual, and that the sexual touching went both ways.

Records show that police began to question Jane's account after learning that she had left out some key details, such as the make-out session in the lounge. "I asked … if she was aware that dorms had cameras in the common areas," wrote Sgt. Paul Cottingham in a Dec. 15 report. Under questioning, she admitted that she and John had kissed in the lounge. "I explained that by omitting the fact that they had been consensually kissing, it brings into question her statements about what happened in the bathroom," Cottingham wrote. She apologized for the omission, but stuck by her story.

On Dec. 17, the Ramsey County attorney dropped the case, citing insufficient evidence.

But at St. Thomas, the disciplinary process was in full swing.

In meetings and e-mails, St. Thomas laid out how its investigation would unfold. The dean of students named a psychology professor and a campus administrator to act as "fact-finders." Both Jane and John would have the right to a lawyer present when questioned, but only as silent observers. Both sides could suggest potential witnesses, evidence and lines of questioning; but the fact-finders — who had "specialized training in these types of investigations" — would conduct the interviews in private. There would be no hearing, and no chance to challenge anyone's testimony in person.

John Doe's lawyer, Beau McGraw, requested a copy of the video from the dorm lounge. The university refused, citing student privacy laws.

Over the next eight weeks, the two fact-finders interviewed about a dozen witnesses, reviewed evidence and submitted their findings in a report. Both students were allowed to comment, in writing, one more time before the dean of students, Linda Baughman-Terry, made the final call. On Feb. 10, she notified John Doe that she had found him responsible for "non-consensual sexual intercourse." He was suspended for three semesters.

In a five-page appeal, John argued that the process was flawed. "The facts just don't add up," he wrote. "[Jane] is using an accusation as a weapon against me because I texted her the day after our encounter, saying that I did not want to pursue a further relationship with her." The ordeal, he argued, had already caused "irreparable harm" to his reputation and jeopardized his education. "Are you starting to see why the decision was arbitrary AND capricious? There is no evidence but her word."

In April, the school rejected his appeal. Two weeks later, he sued in federal court, seeking to reverse the disciplinary action.

The suit argues he was denied an impartial investigation and a meaningful hearing, and suggests that the university was really looking out for its own interests. The federal government, the lawsuit said, had "put great pressure on St. Thomas and other universities … to simply punish the male student in order to avoid jeopardizing the flow of taxpayer dollars."

St. Thomas has filed a motion to dismiss, which will be heard Oct. 5. In its court filings, it argued that — as a private school — it has no legal duty to provide due process in such cases. But as a practical matter, it says it offers exactly what's required of public universities: providing the accused notice of the accusation and an opportunity to be heard. Beyond that, school officials point out that they've been using the same disciplinary process since the 1980s to handle accusations of sexual misconduct, as well as cheating, fighting and other troublesome behavior. The only change they've made, in response to the government guidelines, is to make sure both students in sex assault cases are treated equally.

"We have a duty to care for both of them in this process and we carry that heavy with[in] our hearts," said Rachel Harris, a director in the office of student affairs at St. Thomas. If anything, she added, the extra scrutiny has ensured an "equitable and fair process for everyone."

•••

Jonathan Taylor, a college-instructor-turned-activist in Texas, has been tracking the steady rise in lawsuits by students accused of sexual assault. As of last week, there were 153 on his database, TitleIXforall.com; most of them, he says, challenging schools on fairness grounds.

"I'm not going to assume for a second that all of these plaintiffs are innocent," Taylor said. But he believes that colleges are in over their heads trying to handle rape cases. "Universities simply don't have the competence or the training or the capacity or the resources to adjudicate these accusations," he said. Rape, like other serious crimes, he says, should be left to the criminal justice system.

The concern has spread, especially in legal circles. Two years ago, 28 Harvard law professors signed an open letter criticizing their own college for limiting the role of lawyers, cross-examination and other safeguards in sexual assault cases. They argued that the disciplinary process, shaped by the federal guidelines, lacked "the most basic elements of fairness and due process." Similar concerns have been raised by the American Association of University Professors and the National Association of Scholars. Just last month, a small Christian school, Oklahoma Wesleyan University, challenged the federal guidelines in court, saying they effectively pressure colleges, in the words of its president, "to negate the constitutional rights of our students."

Advocacy groups, though, say the concerns are overblown, and that the changes finally guarantee some measure of fairness to victims.

"It's also natural that any time you see more enforcement and more attention paid to an issue, that there's often a backlash," said Neena Chaudhry, senior counsel at the National Women's Law Center in Washington. In July, she defended the Department of Education in an open letter signed by 85 national organizations, saying it faced "unwarranted criticism for doing its job." The government's strong stand has "spurred schools to address cultures that for too long have contributed to hostile environments," the letter said.

Christy Hall of Gender Justice, a nonprofit law firm in St. Paul, agrees.

"Schools are facing more pressure now to clean up their acts," said Hall, an attorney. "I see it as people are finally making inroads."

On college campuses, victims "are looking for safety," she said. "[They're] worried about the perpetrator showing up in their class." Since the vast majority of rapes are never prosecuted, she added, "I think it's fair that a college has something that's less than the criminal due process to figure out what to do in these cases."

Nor do all legal scholars see a threat to due process. In August, dozens of law professors signed a "white paper," co-authored by Katharine Baker of Chicago-Kent College of Law, applauding the government's efforts. "In light of what we know about the risk of intimidation and underreporting," the authors wrote, it makes sense to discourage tactics like cross-examination. Colleges need an approach "that strikes a balance" between fairness and "over-protecting the accused at the expense of victims," they concluded.

Martin Carlson, a Minneapolis lawyer who represented a Macalester College student accused of sexual assault, readily admits that cross-examination can be uncomfortable. But he says that's no reason to abandon it.

"The role of a lawyer is not to go beat up on other parties, it's to really help draw out the facts," he said. "I just don't know how you can reliably get to the truth of what happened in a given incident without having an opportunity to asking probing questions."

If a student is accused of sexual assault, he says, schools shouldn't be muzzling their lawyers or tying his hands.

"We're not asking for the sun, moon and stars here," he said. "We want due process. You don't want to create an environment in which you are victimizing innocent people who have been unjustly accused."

Cohn, the civil liberties lawyer, says colleges have to find a better way to serve both sides. "We can't throw all of the rules of fundamental fairness out the window," he said. "That kind of crusade rarely leads to justice for anyone."

Maura Lerner • 612-673-7384