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Los Angeles’ Occidental College is among many being sued by students who say the sexual assault hearing process is unfair.

Brian Vander Brug • Los Angeles Times,

More men contest sex assault charges on campus

  • Article by: Teresa Watanabe
  • Los Angeles Times
  • June 10, 2014 - 6:36 PM

Peter Yu, Drew Sterrett and Lewis McLeod were headed toward bright futures at prestigious colleges and universities when each got involved in one-night sexual encounters. ¶ All three young men claimed the encounters were consensual — but the women asserted otherwise. ¶ In each case, campus officials found the men responsible for sexual assault and expelled or suspended them. ¶ But all three are pushing back, suing the schools on charges that their rights to a fair hearing were violated.

As universities and colleges launch intensified efforts against sexual misconduct, more cases are shifting from campuses to courtrooms.

The three young men are suing Vassar College, the University of Michigan and Duke University, respectively; students who were suspended or expelled for sexual assault have also filed actions against Occidental College, Columbia University, Xavier University, Swarthmore College and a host of other campuses.

Most are arguing that the college hearing process is unfair. In a new twist, some young men also are asserting that the college discipline process is skewed against them because of their gender, violating the 1972 Title IX law, which bans sex discrimination by schools receiving federal funds.

The lawsuits reflect growing concern about the legal rights of the accused, especially as complaints of sexual misconduct increase.

Burden of proof

Some critics argue that students should have the right to an attorney and to question their accusers — protections not granted on all campuses. They expressed concerns about the government’s 2011 directive to apply a lower burden of proof — “preponderance of evidence” — in sexual misconduct hearings, instead of the standard of “clear and convincing evidence” that campuses had been using.

That directive by the Department of Education’s Office of Civil Rights also gave both parties the right to appeal a decision, which critics argue amounts to “double jeopardy” for the accused student who was cleared once.

“I think there has been a significant amount of pressure on universities to treat all of those accused of sexual misconduct with a presumption of guilt,” said Robert Shibley, senior vice president of the Philadelphia-based Foundation for Individual Rights in Education, a leading voice for free speech and due process.

But many activists who fought for stronger federal action against campus sexual assault are dismayed by contentions that universities are improperly punishing innocent students. Thanks to activist pressure, the federal government has launched more inquiries, fines and directives since 2011 than ever before.

Annie Clark, a former University of North Carolina student who has helped more than a dozen groups file federal complaints on sexual misconduct, said campus hearing processes are still riddled with problems for both sides. But overall, she said, accusers face more problems making their claims than do the accused.

Last week, for instance, hundreds of students rallied at Stanford University to protest what they regard as weak sanctions against sexual assailants.

The organizer, Leah Francis, is protesting Stanford’s decision not to expel a student that a university disciplinary panel found responsible for forcible sexual assault against her. Instead the university imposed a five-quarter suspension, community service and sexual assault education.

Erin Buzuvis, a law professor at Western New England University who writes the Title IX Blog, said claims by men of sex discrimination under Title IX would be difficult to prove. Among other things, it would require men to show that women accused of sexual assault received more lenient treatment.

The common thread

Still, Andrew Miltenberg, a New York attorney who represents plaintiffs suing Vassar and Drew University, said interest in filing such cases has surged in the last year. “The common thread is really egregious due process violations,” he said.

In the Vassar case, a female student filed a charge of sexual assault against Miltenberg’s client, Yu, a year after the encounter. Yu claimed the encounter was consensual and that Vassar ignored evidence, such as the female student’s Facebook messages saying she had “a wonderful time.”

In addition, Yu contended in the court filing that the university refused his request to have a student on the hearing panel, which was made up of three colleagues of the victim’s father, a Vassar professor.

Sterrett filed his lawsuit against the University of Michigan in April, alleging “significant due process violations,” including failure to provide notice of charges or the names of witnesses against him.

In his case against Duke University, McLeod recently won a ruling blocking his expulsion while his lawsuit proceeds. A judge found that McLeod had demonstrated a “likelihood of success” in his claims that Duke violated his rights in the disciplinary hearing process.

© 2014 Star Tribune