Campus Sexual Assault:|Who Should Be the Judge and Jury?

     SAN JOSE, Calif. (CN) — It’s an unfortunately familiar and complicated story, fraught with the personal, the political and the historical.
     The controversy over the new era of Title IX enforcement regarding sexual assaults on college campuses is playing out at universities across the nation and increasingly spilling over into the courtroom, only serving to fan the flames of an already strident debate about how to best address the problem.
     A spate of lawsuits filed by individuals claiming schools mishandled investigations and judiciary hearings related to campus sexual assault call into question whether universities or colleges should adjudicate sexual assault allegations or whether the issue is best left to the criminal justice system
     One of the more recent lawsuits was filed April 12 in Santa Cruz Superior Court, and stems from alleged sexual misconduct that occurred in September 2014. The case involves University of California-Santa Cruz student Zackery Ramos-Taylor, a member of the university’s cross-country team, and an unnamed female member of the team.
     In the suit, Ramos-Taylor claims the university suspended him without due process and that he should be reinstated in school and allowed to graduate on schedule.
     The unnamed woman accused Ramos-Taylor of sexually assaulting her the morning after a party the two attended. For his part, Ramos-Taylor says the interaction was not only consensual, but initiated by the woman — an assertion Ramos-Taylor claims in his lawsuit was corroborated by numerous witnesses.
     The university said the young woman was intoxicated and was too incapacitated to give consent. However, officials later based Ramos-Taylor’s suspension on the fact that after the two had sex during the night, he woke up in the morning and while trying to reinitiate sex, digitally penetrated the woman without her consent.
     In his lawsuit, Ramos-Taylor not only denies he assaulted the woman, but says he was treated unfairly at the university disciplinary hearing and asks the court to stay the suspension so he can resume his classes. Ramos-Taylor’s attorney, Andrew Jaecki did not return a phone call requesting comment.
     Ramos-Taylor’s lawsuit just one of many threading their way through state and federal courts around the nation.
     “This is a developing area of law and it is constantly evolving,” Samantha Harris, director of policy for the Foundation for Individual Rights in Education, said in an interview.
     Approximately 100 students sued. Some of them have won and others survive motions to dismiss — after which the universities typically settle.
     “Even though some of these plaintiffs are succeeding, it is still an uphill battle,” Harris said, but noted that a decision by a Massachusetts federal judge advancing a student’s contract claims against Brandeis University is altering the legal landscape.
     In the 89-page ruling, U.S. District Judge Dennis Saylor said the unnamed plaintiff, who was suspended for having “numerous, non-consensual sexual interactions” with his boyfriend over the course of a two-year period, was not treated fairly by the university’s judicial process.
     “(The plaintiff) was required to defend himself in what was essentially an inquisitorial proceeding that plausibly failed to provide him with a fair and reasonable opportunity to be informed of the charges and to present an adequate defense,” Saylor wrote. “He was ultimately found ‘responsible,’ and received a penalty that may permanently scar his life and career. Under the circumstances, the complaint plausibly alleges that the procedures employed by Brandeis did not provide him with the ‘basic fairness’ to which he was entitled.
     Saylor’s decision may empower a growing chorus of voices who say universities lack the ability to fairly and impartially adjudicate sexual assault incidents on campus, an issue innately rife with legal and ethical convolution.
     “Even for law enforcement and criminal courts, investigating and adjudicating sexual assault cases often means grappling with the profound complexity inherent to these cases, and the difficulties that can arise are significant,” Janet Napolitano, president of the University of California system, wrote in a 2015 essay for Yale Law & Policy Review.
     In that essay, Napolitano delineated some of the limitations campuses face in adjudicating sexual assault, including lack of subpoena power, restrictive jurisdiction over off-campus incidents, limited investigative authority and limited sanctions.
     These limitations have legal experts like Aya Gruber, a law professor at the University of Colorado School of Law, concerned that recent federally mandated policies demanding that colleges address the problem of sexual assault have swung the pendulum too far in the other direction.
     “When you have Vice President Joe Biden and President Barack Obama saying the criminal justice system is failing at punishing rapists and that schools need to step up, this puts enormous pressure on the schools to find in favor of the complainants,” Gruber said in an interview. “And the schools are ill-equipped to make these findings. This issue has outpaced the institutional competency.”
     Gruber’s reference to Obama and Biden relates to a 2011 “Dear Colleague” letter that the U.S. Department of Education sent to universities outlining how colleges must take immediate steps to investigate sexual violence and bring about effective remedies to stop the violence. The department also said universities must do so in order to comply with Title IX, a 1972 law that explicitly prohibits gender discrimination in the education system.
     Institutions that fail to comply with Title IX and the prescriptive guidelines set forth in 2011 risk losing indispensible federal funding.
     Thus, the attempts to install more robust quasi-judicial procedures under the auspice of the feds’ new marching orders means the impartiality and fairness necessary to the proper administration of justice are compromised, Gruber said.
     During a debate sponsored by Intelligence Squared in September 2015, Yale Law Professor Jeb Rubenfeld said the result of this policy is that “colleges conduct rape trials when they’re incompetent to do it.”
     Beyond the limitations that Napolitano describes, Rubenfeld also said colleges lack the forensic ability to administer rape kits, or perform toxicology tests in the case of date-rape drugging. The judicial panels are sometimes comprised of people with no aptitude for adjudication, or of professors and/or students who know either the victim or the accused.
     “These conflicts hurt victims and accused alike,” Rubenfeld said. “In some cases, colleges have a huge incentive to sweep rape cases under the rug, to cover them up.”
     But Rubenfeld and other critics say these quasi-judicial proceedings often lead to the suspension or expulsion of individuals who have committed no crime, or brand and stigmatize them as rapists without going through the more robust and impartial process that our criminal justice system imparts to the accused.
     Apart from the Ramos-Taylor case and the Brandeis University case, other lawsuits are mounting, with students asking for university judiciary panel decisions to be overturned.
     One case involved a student at the University of Southern California who was suspended by the university over an alleged sexual assault of a woman during group sex. The incident began as consensual but turned violent, according to the victim.
     The university found that the student in question violated the university’s sexual misconduct policy because he refused to intervene and stop the incident, and later left the woman alone with the offenders.
     The student successfully appealed the decision to the California Court of Appeals, with a three-judge panel of the Second Appellate District finding that the university failed to give the student a fair hearing.
     In another similar case in Southern California, a judge agreed that a student’s due-process rights had been violated after being suspended by the University of California-San Diego for allegedly assaulting a female student. The university presumed the student’s guilt ahead of time while failing to allow him access to the witnesses and evidence, the judge ruled.
     A student at Middlebury College in Vermont also had his expulsion halted by a federal judge, who ruled the student would likely to prevail on the merits, and the case was eventually settled out of court. And a Tennessee state court judge ruled that a wrestler at the University of Tennessee-Chattanooga should not have been expelled from the university, finding inadequate proof of sexual assault.
     Harris, from the Foundation for Individual Rights in Education, said that while many of the cases focus on due process or breach of contract, another emerging sector deals with the fundamental fairness of the university enforcement process in what she deems “reverse Title IX claims,” where men claim they are being discriminated against on the basis of their gender.
     Again, no precedent has been established and attorneys and judges are staking new legal territory, largely as a result of the new federal policy brought about by the 2011 “Dear Colleague” letter, Harris said.
     Nevertheless, these cases and others filed and pending have emboldened critics of the newly empowered Title IX panels at universities. Last July, three Republican members of the House of Representatives introduced the Safe Campus Act, which sought to prohibit colleges from conducting rape investigations and require victims to report the crimes to police as means of seeking justice on campus. The bill is still pending.
     Michelle Anderson, a law professor with City University of New York, said this is a bridge too far.
     During the same September debate where Rubenfeld argued that sexual assault is the exclusive province of criminal courts, Anderson said the Safe Campus Act was “Orwellian.”
     “All of this assumes criminal courts are effective arbiters of sexual assault cases,” Anderson said in an interview. “In fact, 80 or 90 percent of victims of sexual assault on campus never report to the police. Also, there is an established history of criminal justice system failing to take the reports seriously enough.”
     Proponents of the Title IX enforcement also note that the burden-of-proof requirements in the criminal justice system have made adjudication of sexual assault traditionally burdensome for victims.
     These requirements, with the onerous and often protracted process of court battles, means there is a gap between sexual assault incidents and the criminal justice system’s response that must be bridged.
     Anderson further notes that the recent lawsuits and handful of victories against colleges that have failed to offer an appropriate judicial process proves the system works.
     “I don’t think filing of suits is indicative of a failure,” Anderson said. “Suits on both sides of such a controversial issue are somewhat to be expected. I also think campuses are working out how to equitably and promptly respond to this problem.”
     Gruber, the Colorado law professor, concedes that Title IX has a role to play in ensuring equal education and a safe environment where both men and women can pursue their studies without fear of sexual harassment or violence.
     “Student-on-student conduct needs to be dealt with,” she said, noting that behavior like sexual harassment that may not rise to the level of criminal conduct should still be given shrift by universities interested in providing an equal and fair education. “But you have to be careful. This isn’t a civil rights lawsuit against some firm. These are students and they are young.”
     In many instances, the young women who bring complaints to university officials don’t want harsh punishments brought against the accused, Gruber said. The victims should be consulted and if they just want to be able to simply change dorms inconspicuously, they shouldn’t be forced to participate in a punitive system.
     “This has been portrayed as a pro-victim regime. But I’m not sure, given the surrounding culture of it all, that it will end up being all that good for victims,” she said.
     Gruber isn’t saying that abandoning the current Title IX format altogether is the answer, but she does argue we “need to reconceptualize precisely what we want colleges to do.”
     While UC chief Napolitano concedes limitations to the university adjudication process, she asserts there is a role for colleges.
     “Universities and colleges, by virtue of their education and research missions and expertise, are well positioned to undertake the necessary education and research, and prevention and response actions, that leadership in this area will require,” she wrote.
     Many of the experts interviewed from this story advocated for a balanced approach, with colleges assuming a careful role that incorporates some of the impartiality and due process of the criminal justice system and the courts providing recourse to those that feel failed by that system.
     For instance, CUNY law professor Anderson maintains that the criminal justice system must prosecute rapists, but advocates a role for colleges to supplement those prosecutions.
     “Schools have work to do to protect students who make allegations and the students against whom the allegations have been made,” she said. “But by and large, they are very much trying to do the right thing.”

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