Anti-Male Bias Alleged in Education Office

           DENVER (CN) — A Colorado State student who claims he was falsely accused of rape says a “Dear Colleague” letter from an assistant secretary of the Department of Education encourages colleges to deny male students due process.
     As universities’ responses to rapes, sexual assaults and harassment have become nationwide news, increasing numbers of young men have sued their colleges, claiming they have been suspended or expelled, though the women acknowledged that the sex was consensual.
     Colorado has seen at least two such discrimination lawsuits in the past three years.
     In 2015, the University of Colorado Boulder paid a $15,000 settlement to a student whom its campus judicial process found guilty of sexual assault two years earlier.
     The John Doe student claimed the school did not advise him of the services and resources available to him when he was accused, and that the process and investigation was one-sided and biased against him as the male perpetrator. The college settled after the alleged victim came forward and acknowledged she had not been coerced into sex.
     Last week, a similar federal lawsuit was filed against Colorado State University at Pueblo and the U.S. Department of Education.
     Grant Neal, a student athlete, say he was suspended from school for having sex with another student athlete, whom he was training.
     Neal, who describes himself in the 90-page lawsuit as “a high profile football player,” says a “peer” of his sexual partner saw a hickey on her neck the day after they had sex, and “took it upon herself to make an unsubstantiated report … that Jane Doe had been raped by plaintiff, notwithstanding her lack of direct knowledge concerning the encounter.”
     The next paragraph of the lawsuit describes a frantic series of text messages from Neal’s friend: “Jane Doe sent a text message to plaintiff at approximately 3:48 p.m. stating ‘I need to talk to you ASAP after practice!!!!! Like in person even if we just talk in your car! Please!’ She further texted ‘I’ve been running around all day talking to so many people, trying to make things right!!! One of the other Athletic Training students screwed me over! … She went behind my back and told my AT advisor stuff that wasn’t true!!! I’m trying so hard to fix it all. I want to tell you what’s going on. Please!'”
     Neal says his friend told school administrators that the sexual encounters with Neal had been consensual, but nonetheless, he was himself suspended from school and stripped of two athletic scholarships.
     Neal’s lawsuit said the problems is systemic, and is caused in part by the April 4, 2011 “Dear Colleague” letter from Russlyn Ali, assistant secretary in the Department of Education’s Office of Civil Rights.
     The 19-page letter guides colleges through the process of handling sexual violence claims originating on campus, and explains the 1972 Title IX Education Amendment, which prohibits sexual discrimination in schools that received federal funding.
     The CU-Boulder student who received the $15,000 settlement also mentioned the “Dear Colleague” letter. Like Neal, he claimed that the letter encourages universities and colleges to mete out harsh punishments to young men without due process.
     The crux of the issue, Neal says, is the letter’s “preponderance of evidence” requirement.
     “The Dear Colleague Letter has aggressively dictated how colleges and universities handle sexual assault and sexual harassment on campus, by laying out specific requirements that schools must adopt and utilize, causing schools to brand more students ‘rapists’ based on the excessively low ‘preponderance of the evidence’ burden of proof (equating to a mere 50.01% probability that the alleged misconduct occurred,” the complaint states.
     The Foundation for Individual Rights in Education (FIRE) agrees. It has published several letters in response to the Dear Colleague Letter.
     FIRE is a libertarian-oriented nonprofit founded in 1999.
     “Whoever is serving as the ‘jury’ in such a case need only be 50.01% certain that the accused person is at fault,” FIRE says on its website.
     “For comparison, if you are tried in a real court for any crime, no matter how minor, the more familiar ‘beyond a reasonable doubt’ standard must be used, which means that the judge or jury must be virtually certain of your guilt.
     “Given the seriousness of allegations of sexual misconduct-which range from sexual harassment to rape — FIRE believes that requiring universities to find accused students guilty based on this ‘more likely than not’ standard does not sufficiently protect the accused person’s right to due process.”
     Despite the rising numbers of alleged male victims of procedure, sexual assault on campus is still overwhelmingly a problem for women.
     The American College Health Association reported in 2013 that 5 percent of women on U.S. college campuses suffer rape or attempted rape every year.
     With 12 million college students 25 or younger, and another 8 million older than 25, and more than half of them women, according to Census figures, that would come to 1 million sexual assaults or attempted assaults on campuses each year.
     In one of the largest campus surveys ever conducted, the Association of American Universities interviewed 150,000 students at 27 different, and found that 23 percent of undergraduate women reported that they had experienced unwanted sexual contact at college.
     Boulder attorney John Clune, who specializes in Title IX issues, the Daily Camera newspaper that the needs female rape victims should remain top priority.
     “We’re still having a tremendous number of schools that are not applying the code of the conduct the way they should be to the discrimination of women,” Clune said. “The male student lawsuits are getting a lot of attention because they’re somewhat novel, but I think the cases where men may actually have not been treated fairly in the process are probably still a drop in the bucket compared to where women are.”     
     Baine Kerr, who also works in Title IX litigation with Cune at Hutchinson and Black, said that males who have legitimate complaints should still be protected under Title IX. But he worries that colleges might begin to deflate their services directed at female victims out of fear of these reverse lawsuits.
     “I don’t think new rules or statutes are needed,” Kerr told Courthouse News. “Title IX protects all ‘persons,’ including males, from discrimination in educational settings. What worries me are political pressures and universities’ fears of liability driving Title IX enforcement. Much needs to be done to ensure evenhanded adjudication of sexual offenses.
     “False claims of rape are exceedingly rare. All claims deserve fair hearings but that doesn’t mean affording respondents the full due-process rights of criminal defendants.”
     Kerr, whose Title IX clients have been mostly women, said University of Colorado schools have been executing the provisions in the Dear Colleague letter appropriately.
     “The University of Colorado by and large is going a good job.”
     As for the issue with the letter’s preponderance standard, Kerr says the system typically can be “tailored” for whatever purpose it has to serve.
     “The purpose of conduct-code hearings is very different from the purpose of criminal proceedings,” Kerr said. “The purpose is to promptly and equitably eliminate a risk of discrimination or harassment from a campus. To make campuses safe for students. The purpose is not to put people in prison.”
     He continued, “The due process afforded should be tailored to the purpose. Proceedings need to be expedited. The standard of proof of responsibility should be by a preponderance of the evidence, not beyond a reasonable doubt. The preponderance standard is the same employed not only in civil discrimination and harassment cases and civil rape claims but even for determinations of murder in probate cases to prevent killers from profiting from their crimes.
     “The preponderance standard is perfectly appropriate for conduct cases.” Neal seeks declaratory judgment, an injunction, and damages for Title IX discrimination, due process violations, breach of contract, promissory estoppel, and breach of faith.
     He is represented by Michael Mirabella, in Denver, and Andrew Miltenberg in New York City.
     The Department of Education did not respond to a request for comment.

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