Four Straight Legal Victories for Due Process

In the fourth consecutive court ruling of its type (following Xavier, St. Joe’s, and Duke), a federal judge in Vermont has sided with an accused student in a due process lawsuit. In a previously below-the-radar filing, a student named Luke Benning sued Marlboro College after the school suspended him for three semesters for sexual assault. Last week, Judge William Sessions (a Clinton appointee) rejected the school’s motion to dismiss. (You can read the judge’s opinion here.)

Benning’s lawsuit noted that he had been a student in good standing (which Marlboro didn’t challenge), and that in the 2011-2012 academic year, he began a relationship with another student. They had sex in August 2012, and discussed the episode via private Facebook messages afterwards. (The accuser said it was “nice,” and encouraged another liaison.) The relationship shortly thereafter deteriorated; Benning’s filing, based on private Facebook exchanges, suggest that the accuser was more interested in pursuing the relationship than he was, but that she described the affair as a “positive experience” and Benning as a “really great guy.” A few months later, however, Benning started dating a friend of the woman who would accuse him. The accuser, it is alleged, took poorly to this development. She first made her objections known publicly. Then, at the end of the spring 2013 semester, she filed an informal complaint against Benning, which she escalated to a formal complaint in fall 2013.

College Procedures

Marlboro’s sexual assault procedures have two unusual twists. First, the college promises “the right to confidentiality to the extent possible.” Second, the school grant to the accuser, but not to the accused, the right to be free from retaliation, and the right to “request conditions that must be observed by the involved parties during this process.” The latter items seem to contradict the college’s stated promise that the accused is presumed not culpable.

Beyond these two items, the procedures are typically due process-unfriendly. After a complaint is filed, a college-hired investigator takes two weeks to conduct an investigation and write a report of his findings. (The lightning-fast inquiry is aided, of course, by the fact that the investigator lacks subpoena power.) The accuser and the accused then have five business days to submit a written response to the report—although the accused student does not gain access to the actual evidence being used against him that formed the basis of the report. Five business days later, a disciplinary hearing commences—at which the accused student can’t cross-examine his accuser and can’t be represented by an attorney. Within four business days, the panel makes its findings, based on a preponderance-of-evidence standard. In short, Marlboro College believes it can investigate and then prosecute a rapist in about a month. The accused student can appeal, on grounds that the panel failed to consider relevant evidence, or that it committed a procedural error.

The College Acts

Benning’s fling states that he cooperated with the Marlboro investigation, including by granting the school access to the private Facebook messages with his accuser. The investigator’s report nonetheless suggested enough evidence existed for the case to move forward and a hearing was held. Thirty-one days after Benning was first notified he was under investigation, Marlboro expelled him, claiming that he had raped the accuser and then retaliated against her, as part of a pattern of sexual misconduct.

Benning appealed. Remarkably, given the biases within the college system, he prevailed on appeal. The dean of students concluded that three procedural errors had occurred, including improperly admitted evidence (the filing doesn’t say what this evidence was). The dean nonetheless upheld the verdict, but reduced the punishment to a three-semester suspension, during which Benning needed to receive counseling and to complete a “sexual respect” class if he wanted to be readmitted to school. Marlboro’s filings in the case to date did not dispute any of these points.

The Legal Action

Benning then sued (you can read his complaint here), alleging breach of contract and defamation (on grounds that the school had falsely branded him a rapist, and that he encountered people at the school who treated him suspiciously as a result, despite the procedure’s promise of confidentiality). Marlboro’s defense (which you can read here) rested on three grounds: (1) by implication, that the school followed its procedures; (2) that the case doesn’t belong in federal court, since the damages don’t exceed $75,000; and (3) that the defamation claim is incorrect, since the revelation that the school branded Benning a rapist would be made not by the school, but by Benning himself (when he applies later in life for future educational or job opportunities). The latter point is technically true—and Marlboro preliminarily prevailed on it at the motion to dismiss stage—but also quite revealing: the college has conceded its knowledge that the school’s actions likely will cause Benning a lifelong harm. Finally, Marlboro filed a motion requesting that certain college employees be shielded from depositions in the case.

In the event, Judge Sessions rejected out of hand Marlboro’s claim that the court lacked jurisdiction. He reasoned that the delay in graduation caused by the suspension, plus the loss of earning capacity later on, could well cost Benning more than $75,000, meaning the case is properly before the court. Sessions also noted that settled law in Vermont (unlike, say, in the 4th Circuit) holds that the “relationship between a student and a college is contractual in nature,” so if Benning is correct that Marlboro didn’t follows its procedures, the college would be liable. Sessions dismissed the defamation claim, but held that Benning could refile it if he comes across defamatory statements by college employees in the discovery process.

In perhaps the most important part of the decision, Sessions rejected Marlboro’s claim of privilege regarding elements of the school’s investigatory process. The disciplinary panel, the school argued, was similar to a government decisionmaking body, and the deliberative process privilege should apply to it. Sessions detected the obvious problem with this line of argument: Marlboro College is not a government entity. Schools can pretend they’re the equivalent of police departments investigating violent crimes and district attorneys prosecuting those crimes, but, of course, that isn’t the case. Marlboro’s argument, Judge Sessions correctly noted, would rob Benning of any chance of victory, since “if there is a ‘smoking gun,’ a reason that the Panel or Committee overlooked exculpatory evidence, Benning would discover that information by deposing Panel and Committee members.”

After losing a preliminary motion, Xavier quickly settled with Dez Wells. But St. Joe’s and Duke have continued to fight. What will Marlboro College do—and is it willing to risk exposing its disciplinary process to the sunlight of a federal judicial proceeding?


  • KC Johnson

    KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

10 thoughts on “Four Straight Legal Victories for Due Process

  1. These kollege kangaroo kourts have gotten to beyond ridiculous. I am glad that I do not have a son about to attend college–I would urge him to reconsider, and train to become an electrician, plumber, etc.* Not only would he be safer from the retaliation of a woman who feels scorned, but he’d be making better money, and not be carrying large debt.

    * I used to have “join the military” on that list but I am afraid our military is heading in the same direction.

  2. The definition of rape is clearly changing…again. For many young men, the days and nights of using some combination of manipulation, alcohol, and force to have sex will soon be over; others, caught in this often confusing social transition for failing, for example, to have elicited explicit verbal consent, an act not previously required, face the possibility of a lifetime defined by a ruined reputation and a spoiled identity. This redefinition process is being played out in the public exchanges in the wapo and elsewhere, including a piece of fiction: emerging College Sex Rules, and, of course, the courts.

    1. “manipulation, alcohol and force”? That’s not the issues in these cases. You should read the case histories. You are talking about cases that should be handled by the police.

    2. Anyone who uses force is comitting sexual assault or rape.

      As I have seen in my life BOTH genders use subtle manipulation (read: seduction) to get sex – or get a relationship out of a sexual relationship.

      As to alcohol – both genders use it to lose inhibitions – why is it the male is responsible for the female’s drinking, but not the other way around?

  3. Of course the colleges are screwed either way. If they stop the kangaroo courts to stop the lawsuits, then the fanatical leftists in holders civil rights division, and the dept of ed, will cut off their funding, and subject them to constant suits from the fed gov. If they keep the kangaroo courts, to please the fanatical feminists both on campus and in the fed gov, then they lose massive lawsuits each time one of these kangaroo curts perpetrates another due process outrage.

  4. This isn’t a he said / she said, Benning has private Facebook evidence showing it was completely consensual, even that the (now ex) girlfriend wanted and requested the sexual encounter.

    Does anyone know if he has filed a suit against the ex-girlfriend as well? If so, please link. I am Googling, but nothing found yet.

    1. If he does file a suit against the ex girlfriend, the college will probably charge him with retaliation. She can retaliate against him however she wishes, but no way can he do anything that might offend her.

  5. You take these new campus rape courts run by gender-studies students, and you mix it with the faulty and inflammatory manufactured statistics that American law enforcement now get federal pork bloating dollars to “cook up”.. and what you get are perversions to the course of justice….on an industrial scale.

  6. Query. If a school is receiving govt funds either first hand via grants or second hand via marticulating students would they not be subject to FOIA requests. Especially if the institution in question is a State run school? If so then it would seem that procedures in these kangaroo courts should be public documents.

  7. I hope Mr. Bennington gets a sizable settlement from Marlboro. Something like 25% of their endowment should get their attention.

    Colleges should not be in the Law Enforcement business. Law enforcement needs to be left to the police and the courts.

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