By John Lauerman
Female students nationwide have filed federal complaints that claim campus sexual-assault investigators lack training, fail to adequately probe incidents and treat the attackers with too much leniency.
Now, college men accused of sexual assault are protesting the same system. Taking a page from the women's complaints, men are citing violations under Title IX, the anti-gender discrimination law that women have used to demand equality in sports programming and education for 40 years.
Men are claiming the investigations are biased in favor of their accusers, who are most often women. Campus sexual-assault investigations represent a parallel criminal-justice system run by school officials without legal training in which evidence and the burden of proof are scant and punishments harsh, said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education.
The sanctions, which can include expulsion from college are "massively life-changing," Shibley said. The process "makes someone guilty of what in most states is considered a felony."
In the past two years, men either disciplined or expelled have filed discrimination cases against Xavier University in Cincinnati; Vassar College in Poughkeepsie, N.Y.; Williams College in Williamstown, Mass.; Bucknell University in Lewisburg, Penn.; St. Joseph's University in Philadelphia; and College of the Holy Cross in Worcester, Mass.
The trend reflects a wider debate over how sexual assault is dealt with on campus and how that process differs from the broader criminal justice system. As a result, both female and male students are building cases under Title IX, interpreting the law to give themselves the best possible outcome.
Peter Yu, a Vassar student accused of sexually assaulting a female student last year, wasn't allowed legal representation during the college's investigation of his case, according to his lawyer, Andrew Miltenberg, an attorney with Nesenoff & Miltenberg in New York. As a non-native English speaker from China, Yu wasn't able to tell his story, according to a suit citing Title IX violations filed against the college.
"If you were a senior in college and had paid $200,000 for your education and were hoping to go to medical school, would you want to put all that on the line without a lawyer?" Miltenberg, who maintains his client's innocence, said in a telephone interview.
Yu was expelled in March. Vassar officials declined to comment.
Title IX's requirement that colleges provide equal opportunities in sports programming for men and women has been clear for decades, reshaping college athletics and women's sports. The U.S. Education Department has been slower to define the law's role in sexual assault, said Daniel Carter, director of the 32 National Campus Safety Initiative, an advocacy group based in Centreville, Virginia.
In April, 2011, the Obama administration published the "Dear Colleague letter," which emphasized that schools would be in violation of Title IX's anti-gender discrimination rules by failing to address sexual assaults. To make sure everyone got the message, copies of the letter were sent to every U.S. college, and Vice President Joe Biden held a press event in New Hampshire.
The legislation requires colleges to investigate sexual assaults so that campuses are safe places to learn for both men and women. Education Department guidelines call for probes, which are usually conducted by a small panel of school officials, that should take less than 60 days. Penalties can be appealed by both sides, and colleges can be sued for imposing sanctions, such as expulsion.
Reports of sexual assaults increased to 3,771 in 2011, the latest year for which national data are available from the Education Department. The total was 14 percent higher than in 2010 and 30 percent more than in 2009. About 90 percent of sexual assault victims are female, according to the Rape Abuse & Incest National Network.
Young men in college face a growing risk of being accused, said Nicole Colby Longton, an attorney who sued Holy Cross on behalf of a student accused of sexually assaulting a woman on campus.
"One sexual encounter that involves alcohol, and the next thing you know you're accused and expelled and branded for life," Colby said in a phone interview. "Schools are going to push kids to have signed waivers before they have intercourse."
Increasing numbers of assault victims are filing grievances against their universities. In the fiscal year that ended in September, the Education Department received 30 Title IX complaints claiming colleges failed to prevent or fully address campus assaults, compared with 17 a year earlier and 18 two years prior, according to Jim Bradshaw, a spokesman.
Sexual-assault victims need the protection of Title IX- sanctioned investigations so they can pursue education without continued harassment from assailants, said Mia Ferguson, 20, a student at Swarthmore College in Pennsylvania who filed a complaint against her school for failing to uphold the standard.
Police probes seldom convict assailants and can take years to complete, Ferguson said. That, along with public exposure from courtroom proceedings, discourages the vast majority of women from bringing cases against attackers, she said.
Men's use of Title IX to fight assault charges raises a new obstacle in the long battle for women to gain protection from campus rape, said Laura Dunn, founder of SurvJustice, a Washington-based advocacy group for victims of sexual violence.
"Defense attorneys are trying to get the playing field back to where it used to be, where sexual violence was ignored on campus for fear of lawsuits," Dunn said.
Colleges navigate a fine line as they try to avoid Education Department penalties for failing to investigate and punish sexual offenders, while facing lawsuits from those who say they've been falsely accused, said David Lisak, a former psychology professor at the University of Massachusetts at Boston, who advises colleges on their policies.
"They're going to get hit either way, and they're wondering which one is going to hurt most," he said.
Accused students are at a disadvantage because the investigations don't follow standard rules of evidence, and accusers can appeal the decision that ensues, Shibley said. His group was co-founded by attorneys Harvey Silverglate and Charles Kors, who co-wrote "The Shadow University: The Betrayal of Liberty on America's College Campuses."
The foundation supported a North Carolina law passed this year giving college students the right to a lawyer in certain disciplinary hearings, including ones involving sexual assaults.
While students found responsible for the assault don't go to jail, they are ripped from their friends and studies, subject to shame, risk losing tuition and fees and may be barred from other campuses, Shibley said.
While increasingly under scrutiny, campus investigations into assaults are different from the police and court systems that probe rape charges.
In a courtroom, to prove a rape has occurred, an accuser must show the charges are true "beyond a reasonable doubt." Since 1995, the Education Department has said that campus investigations should be decided by a less-strict rule: a "preponderance of evidence." To satisfy that standard the charges must be more likely than not to be true. That yardstick is used in civil cases and in the establishment of paternity.
The "preponderance of evidence" standard is the right one for cases like those that have found accused men responsible for assaults in campus investigations, said Carter of the 32 National Campus Safety Initiative. Campus investigations apply to college policies, not criminal law, he said.
"The two goals of the process are education and protecting the community, as opposed to the punitive nature of the criminal justice system," Carter said.
In July, 2012, Dezmine Wells, a former star basketball player at Xavier, was accused of sexual assault by a female student. A campus investigation quickly determined that Wells was responsible for the assault, and the college moved to expel him, according to a complaint filed by Wells's lawyer Peter Ginsberg.
At the same time, the woman who accused Wells had undergone a medical exam, according to the complaint. A lack of trauma indicated the sex was consensual and, based on that and other evidence, a county prosecutor decided not to charge Wells with rape. Now, Wells, 21, is suing Xavier for expelling him, citing violations of his rights under Title IX.
"It's becoming clearer that this sort of prejudice against the accused is a result of discrimination," said Ginsberg. Wells now plays basketball at the University of Maryland.
Wells's hearing was held according to standard practices for U.S. universities, said Kelly Leon, a Xavier spokeswoman.
"This lawsuit is the result of Mr. Wells's disappointment in the outcome of a thorough and fair investigation, hearing, and appeal process conducted by Xavier University," Leon said in an e-mailed statement. "Our attorneys will vigorously defend Xavier University and our president against all claims asserted in this suit."
Those standard practices may still need more examination and refinement, Ginsberg said.
"It may well be that the Education Department hadn't thought this through when it made colleges and universities responsible for making these determinations," the lawyer said. "Maybe the whole policy should be reconsidered."