When male students accused of sexual assault challenge their punishments in court, their cases typically don't get very far. But that is starting to change, Jake New reports for Inside Higher Ed.
According to Inside Higher Ed, there are more than 50 pending cases filed by male students who say they were unfairly disciplined after being accused of sexual assault. In the past, most experts would have called those cases long shots because very few resulted in positive outcomes for male students.
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But in the last four months at least four such lawsuits were successful. For example, in July a California judge ordered the University of California at San Diego (UCSD) to reverse the suspension of a male student accused of sexual assault. The student argued that school violated his due process rights by presuming his guilt, preventing access to witnesses, and informing the disciplinary panel ahead of time that he was guilty.
Another case at the University of Tennessee at Chattanooga was decided in August in favor of a male student on similar due process grounds.
What is behind the shift
Samantha Harris, director of policy research at the Foundation for Individual Rights in Education, notes that the due process argument is an easier fit for public schools because of their relationship to the government and the responsibility the schools have to provide due process. "It's a very rapidly emerging area of law," She explains. "Up until this point, it's an area that has not been super fleshed out by the courts."
In the past, most lawsuits alleged that male students were facing gender discrimination under Title IX of the Higher Education Act. But courts have largely rejected that argument, and it required filing cases in federal court—which experts say is generally a less-favorable environment for plaintiffs. But the due process argument is now beginning to make headway in federal court.
The evolving legal environment is yet another challenge for colleges and universities under intense pressure to improve how they handle campus sexual assault. Erin Buzuvis, director of the Center for Gender and Sexuality Studies at Western New England University, says a closer look the disciplinary process could be good for both victims and the accused.
She says schools need to understand they can conduct a Title-IX compliant investigation without taking shortcuts that violate the rights of the accused. And "victims and their advocates have a stake in the integrity of the process as well," Buzuvis notes. If cases are successfully challenged on due process grounds, it could result in true offenders being permitted to stay on campus.
Competing visions of reform
Sens. Kirsten Gillibrand (D-New York) and Claire McCaskill (D-Missouri) are lead co-sponsors of the Campus Accountability and Safety Act, which would mandate additional resources for victims and standardize the disciplinary process across institutions. McCaskill says the law would help prevent many of the due process claims currently making their way through the courts.
Meanwhile, congressional Republicans introduced a bill that would give students a right to a lawyer at their own expense, give colleges more flexibility around what burden of proof they use in their proceedings, and allow the questioning of witnesses, among other provisions.
Gillibrand and Claire McCaskill call that legislation "disturbing," and say it makes the mistake of conflating a campus process with what happens in a court room (New, Inside Higher Ed, 11/5).
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