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Earlier this year, a federal magistrate judge in Harrisonburg, Virginia issued a decision recommending that state college James Madison University (JMU) pay almost $850,000 in attorneys’ fees and court costs to the pseudonymous “John Doe,” a student whom the school wrongly punished for an assault which a Title IX tribunal a year earlier had declined to find him responsible. If approved by the judge presiding over Doe’s lawsuit against the university, it would be the largest known award in such a case.

A Title IX charge had been brought against Doe by another JMU student, “Jane Roe.” In August 2014, Roe filed a complaint under Title IX, which obligates schools receiving federal funding to investigate and take appropriate enforcement action against sexual harassment or sexual misconduct against students or staff. Her complaint alleged that Doe, who lived in the same dorm, several months earlier had intercourse with her when she was intoxicated. But after a campus tribunal hearing saw evidence casting doubt on Roe’s intoxication claim, Doe that December was found not responsible for sexual assault.

In a criminal court proceeding, the Fifth Amendment of the Constitution forbids double jeopardy. But as interpreted by the Obama Department of Education (DOE), Title IX allows an accuser to appeal a decision for the defendant. The appeal, heard by a board of three university professors, adopted many other much-criticized aspects of DOE’s procedures: the board forbade Doe to appear or examine witnesses, kept him from seeing some of the evidence, and did not itself examine witnesses about disputed evidence.

Even so, the board reversed the earlier verdict and imposed what it called a “new sanction,” handing Doe a five-year suspension, without explaining how it came to that decision, or finding Doe responsible for the alleged sexual misconduct. A senior JMU official affirmed the board’s reversal, without advance notice to Doe or any opportunity for him to offer input or explanation. Under the new sanction, after the five-year suspension, Doe would be permitted to apply for re-admission, if he completed an education and counseling program. Perhaps coincidentally, a change in JMU’s records retention policy caused the shredding of all records in Doe’s entire file, including the original hearing and the reversal on appeal.

With the help of a local law firm and the Center for Individual Rights, a Washington, D.C.-based non-profit group, in 2015 Doe brought a lawsuit (John Doe v. Alger) in federal court over the university’s handling of his case. Late the next year, the presiding judge ruled for Doe, finding JMU had violated Doe’s due-process rights, through allowing the double-jeopardy violation and otherwise, and ordered the school to expunge his record and reinstate him in the school.

Since Doe prevailed in the court case, he was eligible to have his attorneys’ fees and court costs reimbursed, but – as it had at nearly every point in the federal trial – JMU resisted. Finally, after about a year of hearings, magistrate judge Joel Hoppe determined JMU should pay Doe $849,231. His 46-page report notes at several points JMU made objections but failed to offer proof for them.

Unsurprisingly, the university has signaled it will likely object to the magistrate’s ruling. The judge presiding over Doe’s case should soon decide whether to accept the magistrate’s recommendation.

Disciplinary Measures for Sexual Misconduct Charges Come Under Review

I have previously written about a state court decision striking down a public college’s disciplinary procedures as fundamentally flawed and unfair. More recently, two private colleges have made out-of-court settlements in increasingly common federal lawsuits brought against them by students disciplined or expelled over allegations of sexual misconduct.

Last December, Middlebury College in Vermont reached a settlement with a former student – the accused student and accuser were anonymized as John Doe and Jane Doe – who had been accused of sexual misconduct during the fall 2014 semester while studying overseas with the School for International Training (SIT). Middlebury’s student disciplinary policies extend to students’ behavior off-campus.

SIT investigated the complaint, made by a non-Middlebury student also in its program, but dismissed the complaint in December 2014. But even though Middlebury had allowed John Doe to register for the Spring 2015 semester, after his accuser contacted Middlebury and threatened to file a complaint against it with the Department Education, Middlebury launched its own disciplinary hearing, using an outside lawyer to investigate.

Expelled Without Due Process

The investigator, using a preponderance-of-the-evidence standard (recommended by controversial Department of Education guidelines), and her own evaluation of witness credibility and other evidence, found John Doe responsible for sexual misconduct. Without providing a hearing, the school expelled him in August.

The accused student, who consistently maintained innocence of the assault accusations, went to the federal court in Brattleboro, where he noted his exoneration in the SIT investigation and attacked Middlebury’s disciplinary procedures as inherently biased against men. He sought a court injunction ordering the school to let him continue his studies while the case continued, pointing out he would lose an $85,000 job offer if unable to graduate on schedule.

Federal Courts Intervene

Despite the school’s objections, the federal judge agreed the student would be irreparably harmed if not allowed to continue his education, and ordered him re-admitted. Months later, the school and student announced they had agreed to settle the lawsuit. The student will transfer to another school, but other terms of the settlement were undisclosed.

In another federal case last year, a judge in Virginia rebuffed efforts by Washington and Lee University to dismiss the lawsuit another John Doe had brought against it, claiming the school’s sexual misconduct disciplinary proceedings had violated federal education law by discriminating against him based on his sex.

The case involved allegations where a party to an apparently consensual sexual event later develops regrets and describes it as non-consensual. The accused student’s lawsuit alleges he met the accuser at an off-campus party in February, and she accompanied him to his dorm room, and had apparently consensual sex then and on another occasion. After he began seeing another student, however, the accuser broke off with him, and that summer filed a complaint claiming their first encounter had actually been a sexual assault. The school decided to expel him.

The accused student further alleged he was not allowed to have legal counsel during the school’s investigation, which he called rushed and badly managed. He further claimed his accuser was influenced by a lecture given by the university’s chief anti-sex discrimination official shortly before she filed her complaint, which allegedly told students regrets over a past sexual encounter show it was not truly consensual.

The presiding judge found the accused student’s claims raised sufficient doubt about the validity of the school’s disciplinary proceeding to let the case go forward, and set an April trial date. Then this February, a settlement in the case was announced, with no details released.

A recent University of Virginia (UVA) law graduate’s new lawsuit attacks the procedural standards for dealing with sexual misconduct cases the Department of Education (DOE) mandates for the nation’s colleges and universities. If successful, the lawsuit could Title IX enforcers to back off their aggressive readings of the specific procedures colleges and universities must use for campus hearings on sexual misconduct.

Filed June 16 in the federal district court in Washington, D.C., the lawsuit identifies the plaintiff with the pseudonym John Doe. In March 2015, a few months before Doe was scheduled to graduate, a sexual assault complaint was filed against him by another law student, identified only as Jane Roe.

It alleged that one evening in August 2013, about a year and a half earlier, Doe had engaged in sexual activity with Roe while she was so inebriated as to be incapable to consent; for his part, Doe denied Roe had seemed intoxicated, much less incapacitated.

Under Title IX of the Education Act Amendments, colleges and universities receiving federal funds are required to investigate and resolve complaints of sex- and gender-related discrimination (including sexual harassment or violence) by employees or students. Failure to do so can bring a federal funds cut-off for the school.

Soon Doe found himself in limbo: the school withheld his diploma until the complaint was resolved (which took almost a year and cost Doe the law firm job he had lined up for after graduation). His campus hearing in January 2016, presided over by a retired Pennsylvania Supreme Court justice, decided that, under the DOE-mandated “preponderance of the evidence” standard, Roe’s arguments held a “slight” advantage over Doe’s defense. Doe was ordered to months of counseling and received a lifetime ban from UVA locations and events.

In the new lawsuit, supported by the campus rights non-profit group Foundation for Individual Rights in Education (FIRE), the plaintiff sued the Department of Education and its Title IX enforcement arm, the Office of Civil Rights (OCR), and the top official at each agency. The suit charges OCR violated the Administrative Procedure Act, which sets fundamental procedures for government agencies, in several ways.

First, Doe’s suit targets Obama administration changes, first issued in an April 4, 2011 “Dear Colleague” letter sent by OCR to campus Title IX coordinators. There, the agency for the first time — a position since reiterated in “Questions and Answers” guidance ORC issued in 2014 — insisted campus hearings use the “preponderance of the evidence” standard in judging sexual misconduct cases. The agency has also chastised schools for using more stringent evidentiary standards, such as demanding claimants make a “clear and convincing” case, or prove a complaint beyond a reasonable doubt.

Opponents of the new stance argue it makes it far easier for a college or complaining student to win a case, but reduces the due-process rights of accused students. (Even the judge hearing Doe’s case called “preponderance of the evidence” the weakest evidentiary standard, the lawsuit notes.)

Further, the 2011 guidance letter departed from DOE’s previous stance and so amounted to important rulemaking, but failed to use APA-required notice-and-comment rulemaking method. The lawsuit also charges DOE’s proffered explanations for mandating a minimal evidentiary standard are so baseless as to be arbitrary and capricious.

Finally, it portrays the plaintiff as the victim of DOE’s and OCR’s well-intentioned but poorly targeted campaign against campus misconduct that, by combining “zeal and hubris,” turns the plaintiff and other defendants in weakly-supported cases into collateral damage, effectively denying their Title IX rights.

The National Association of College and University Attorneys (NACUA) stirred controversy last year by publishing advice from a prominent law firm on ways colleges and universities can protect themselves against increasingly numerous and complex lawsuits filed by students involved in campus sexual misconduct hearings. The 18-page article, “Between a Rock and a Hard Place: A Discussion of Issues that Frequently Arise in Sexual Misconduct-Related Litigation against Colleges and Universities,” was written by five attorneys at the Richmond-based McGuireWoods law firm and published as part of the association’s NACUA Notes series of topical papers giving brief summaries of legal issues.

Risks to Schools of Conducting Sexual Misconduct-Related Litigation

After admitting that the growing number of lawsuits brought against colleges and universities, both by students making accusations of sexual misconduct and by students targeted by such allegations, represents a “legal and political minefield,” the article sketched some frequently litigated issues – on the one hand, accusations schools had discouraged students from filing complaints, failed to investigate adequately or impose appropriate punishments, or complaints by accused students that school disciplinary proceedings or sanctions were unwarranted or unfair. (Since 2014, the article notes, so-called “reverse Title IX” lawsuits by accused students challenging school disciplinary proceedings have outnumbered lawsuits by students claiming a school failed to take their accusations seriously.

Guidance from the federal Department of Education’s Office of Civil Rights, which can investigate and enforce sex-discrimination complaints under Title IX against federally-assisted schools, may not provide a reliable gauge for how schools should evaluate their potential Title IX liability in private litigation, the article further cautions. So they advise schools to eye every sexual misconduct allegation as potentially bringing lawsuits their way. It also encourages school counsel to engage in early planning and strategic thinking to place the institution in the best possible position if sued either by the claimed student victim of harassment or assault, or by the alleged student perpetrator.

The most controversial element of the advice came in its discussion of document preservation. While it will be important for schools’ ability to defend against litigation to have clear and well-documented policies for complying with Title IX requirements and spelling out procedures for dealing with student complaints, the advice paper also urged senior administrators and general counsel carefully to consider destroying early “preliminary and personal documents,” possibly including emails, pre-investigation staff notes, notes made during disciplinary hearings, and report drafts – which, it notes, could “prove very useful” to attorneys who may later sue the school – and instead keep just a “master list” of official proceedings, completed reports, and outcome documents offering a “single, consistent record” free of contradictions that might be found in earlier e-mails, notes and documents.

That suggestion drew fire from some as a ploy likely to be both unethical and ineffective. One commenter likened the suggestion to advising police they should hide evidence suggesting they had arrested the wrong suspect for a crime. Others noted the recommended document purge might run counter to retention policies, particularly at publicly-funded schools, or draw sanctions if the case went before a judge. Eventually, NACUA noted the policy was merely a suggestion by the article’s authors, and not endorsed by the association.