The Detroit Free Press noticed a trend where courts are frequently ruling on the side of students accused of sexual assault.
The lack of due process has led to students feeling unfairly branded as a sexual offender by their university, and in turn, suing.
Over the last eight years, there have been several hundred lawsuits filed against colleges and universities by students accused of sexual assault by another student. Now, experts say a case is filed every two weeks or so.
While some courts are beginning to embrace that there should be due process, others are not and according to an analysis of federal court filings by the Detroit Free Press, universities have lost more of these lawsuits than they have won.
KC Johnson, a professor at Brooklyn College and the co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities,” believes the losses share a problem.
“One commonality is the lack of cross-examination,” he said. “Courts are saying each side should have the opportunity to question each other.”
U.S. Education Secretary Betsy DeVos recently proposed new regulations for how colleges handle sexual assault, which included live hearings with cross-examinations.
According to the new regulations, the questioning would need to be conducted by advisers or attorneys to prevent a victim from being directly confronted by his or her assailant.
This past January, a court ruled that a former University of Southern California (USC) student who was accused of sexual assault would be allowed to question his accuser in front of a neutral fact-finder.
In February, a federal appeals court partially ruled in favor of a male student who says he was discriminated against by Miami University after being suspended for allegedly violating the school’s sexual assault policy.
Cases like these have sent students back to the university with orders to redo the investigation under procedures that correct due process flaws.
Laura Dunn, a sexual assault survivor and attorney, said these occurrences can seriously impact sexual assault survivors.
“They have to go and sit through it all again and relive the whole experience,” Dunn said.
Andrew Miltenberg, an attorney who represents accused students, feels there is a need for courts to step in because “universities, on their own, weren’t going to get [to fair due process] on their own.”
“I still think there’s a lot of confusion out there on what needs to be done,” he said.
Many schools also use to a single investigator method, which involves a single university employee or outside expert interviewing the accused, accuser and witnesses separately before writing a report.
Complaints began to arise, however, that universities were going into the process believing the male was guilty before even gathering evidence.
These processes led to expelled students for sexual assault to feel unfairly branded by their university, leading them to sue and courts to question the processes.
Since the “Dear Colleague” letter, there have been 319 federal cases where some type of action took place. Universities have lost 137 decisions, most of which were to dismiss the lawsuit. Universities have won 119 times and the cases have ended with confidential settlements 63 times.
“A lot of these university policies are hard to defend,” Johnson said. “Universities…are very slow to respond to adverse rulings and make changes. That just leads to more cases.”
