Too often on campus, the best chance for a wrongfully accused student to achieve justice involves a lawsuit after the campus tribunal has done its worst. A system that uses the lowest standard of proof, allows accusers to appeal not-guilty findings, lacks mechanisms for mandatory discovery of exculpatory evidence, denies meaningful (or any) representation by counsel, and prohibits direct cross-examination is almost, by definition, unjust.
As FIRE’s Samantha Harris has long observed, courts are an imperfect vehicle to protect campus due process as a whole; the nature of due process lawsuits makes it difficult for courts to do anything more than address the facts of a single case. (The Brandeis decision comes closest to a judicial declaration that a university’s sexual assault process violated the Constitution.) Moreover, a lawsuit can cost tens or even hundreds of thousands of dollars—well beyond the means of many middle-class or poor families.
It is, therefore, nothing short of preposterous to suggest that the myriad due process lawsuits illustrate the “powerful legal incentives” for colleges to handle sexual assault complaints “fairly.” Yet this was the claim of one prominent defender of the Obama administration’s efforts to weaken campus due process—my own institution’s president, Michelle Anderson. She added that “campuses are responding—as they must—when accused students prevail.” The extensively footnoted article contained no footnote for this assertion.
When Innocence Isn’t Enough
Anderson’s words would be cold comfort to accused students from Miami (Ohio), Case Western, or the University of California-San Diego. In the Miami case, Judge Michael Barrett noted that the accused student had “alleged facts which cast doubt on the accuracy of the outcome.” Indeed, the “discrepancy between [the accuser’s] written statement—‘I never said no’—and the finding that [the accuser] asked [the accused student] to stop casts serious doubt on the accuracy of the outcome of the Administrative Hearing [emphasis added].” Yet Judge Barrett concluded that 6th Circuit precedent prevented him from rectifying the injustice.
In a 2015 case at Case Western, Judge Christopher Boyko concluded that the accused student had made “a plausible claim that [he] was innocent of the charges levied against him and that CWRU wrongly found that [he] committed the offense.” Case Western didn’t give the accused student access to the full case file. The panel refused to ask some of the questions he deemed critical to his defense, and the chairman of the panel treated him with hostility.
The university denied his appeal—after allowing the appeals officer to consider an anonymous letter, to which he was never given access, to be added to his file. Despite noting that this treatment left a “plausible inference that CWRU’s disciplinary hearings were procedurally flawed,” Boyko sided with the university, citing relevant 6th Circuit precedent. The likely innocent student—found guilty after a flawed procedure—was out of luck.
This is, of course, the same circuit at which Judge Martha Daughtrey mused at how students accused of sexual assault are entitled to no more due process than a soldier facing a military board of inquiry. Daughtrey isn’t alone in her judicial indifference of basic fairness. The highest-profile example came in a 2016 appellate decision from California, where a three-judge panel restored the discipline against an accused student at UC-San Diego. The judges reached that conclusion even after one of them publicly compared the UCSD process to a kangaroo court.
For those accused students filing outside of the 6th Circuit (or, in the aftermath of the UCSD decision, in California state court), success depends less on the merits of their case than on the judge to whom the case was assigned. For the public, however, even an unsuccessful lawsuit can provide critical insight into the otherwise secret world of campus due process.
Yet in two important respects, the interests of litigants and of the public are at odds. First, and quite understandably, wrongfully accused students want to end the process as soon as possible. In almost all cases, their primary goal is an expungement of their record, given the life-altering consequences of a wrongful finding of sexual assault. The public, by contrast, has an interest in a process lengthy enough to require the university to turn over internal documents relating to its disciplinary process—and to get university disciplinarians under oath.
These two interests most obviously come into conflict in settlement discussions. With the exception of Brown (and, oddly, Brandeis), most colleges and universities have entered into settlement discussions shortly after losing a motion to dismiss. The two most recent settlements—both troubling cases profiled by Ashe Schow—came at Lynn University in Florida and Allegheny College in Pennsylvania. In a twist, both settlements came shortly after court rulings requiring some degree of participation in the lawsuit by the accuser, setting up the possibility of cross-examination that the schools had gone out of their way to prevent.
It’s easy to see why the accused students settled; otherwise, their lives would have been on hold indefinitely. But the settlements also ensured that the public will learn no more about these deeply disturbing cases.
The interests of litigants and the public also are in opposition with regards to publicity. The first round of litigation after the Dear Colleague letter—cases at Xavier, St. Joe’s, Miami (Ohio), and Vassar—all featured students suing in their own names. Now, virtually all suits are filed under “John Doe.”
For reasons recently explained by Judge Philip Simon (in a case at Notre Dame), this shift is in the best interests of justice: the marginal benefits to the public knowing litigants’ identity are overcome by the litigants’ need for privacy. But the shift nonetheless represents a tradeoff and prevents those who cover the cases from getting a better sense of the personalities involved.
The far more troubling new development involves the sealing of all or much of the case file. Such efforts initially came mostly from accusers—in cases at Georgia Tech, St. Thomas, and (involving her subpoena) Amherst. But in two recent cases—James Madison and Notre Dame—accused students have entered into agreements with their universities to file material, including the transcript of the disciplinary hearing, under seal.
It’s understandable why an accused student would want to take such a course—even if innocent, the material in the campus process can be personally embarrassing. And not all of material is permanently shielded from the public—judges can cite from it in their opinions, as the two judges did in the critical due process victories at JMU and Notre Dame. But one reason why I was able to write so extensively about Amherst is that the accused student’s lawyer, Max Stern, placed all aspects of the disciplinary file, including the transcript, into the record, fully open at PACER.
In contrast to the “John Doe” issue, judges should push back on closing non-redacted material from public view. The public has a right—indeed, an obligation—to learn as much as they can about the unfairness of the campus disciplinary process. And as things stand now, due process lawsuits represent the only way for the public to achieve an unvarnished view.
To date, the Trump administration has made no efforts to push back any of Obama’s anti-due process policies. And it’s not at all apparent that, even if they did so, colleges would do much to restore a sense of fairness. So litigation—despite its clear limits—will remain the best avenue for both justice and transparency.