[KC Johnson and Stuart Taylor] Campus due process in the courts

About one new due process lawsuit per week was filed last year against a college by a student who had been found guilty of sexual assault by a campus tribunal, despite what the lawsuits claim is strong evidence of innocence. This estimate comes from Samantha Harris, of the Foundation for Individual Rights in Education (FIRE). With the federal government, campus activists and many faculty members and administrators pressuring universities effectively to presume the guilt of accused students, that one-per-week rate has continued into 2017. The most recent lawsuit was filed last week by a former Purdue ROTC student.

Many of these lawsuits continue to work their way through state and federal courts. But there have been more than 50 decisions in lawsuits filed by accused students since the Obama administration mandated in April 2011 an array of procedures designed to produce more guilty findings. The accused student has prevailed in around half of these cases, although generally only in a preliminary motion, followed by a university settlement. This record allows for some generalizations, in what is a surprisingly unstable area of the law. The lawsuits have employed differing theories, involving claims of gender discrimination, due process violations (at public universities) and breach of contract. But at the most basic level, each has asked judges to recognize the depth of the unfair procedures employed by the targeted university.

These decisions come against a long-standing historical background of judicial deference to campus disciplinary judgments, which in the past often involved allegations of academic misconduct. Judges appropriately concluded that professors were better able than jurists to determine what constituted plagiarism or cheating on exams. We doubt, by contrast, that university bureaucrats deserve similar deference when they undertake to decide whether their students have engaged in behavior that’s a felony in all 50 states.

The strongest federal appellate win for an accused student was issued unanimously by an all-Democratic-appointed panel of the 2nd Circuit in July 2016. And the biggest appellate loss for an accused came a few months later, from a unanimous 6th Circuit panel that included two George W. Bush appointees.

Those two decisions are bookends for the diverse approaches that different judges have taken to the civil liberties of accused students, mostly males, whose fates are decided by campus authorities. The 2nd Circuit case arose out of a drunken hookup in 2013 at Columbia that led to a sexual assault claim many months later. The accusing student claimed she was too drunk to consent to sex. But the university’s investigator ruled out as irrelevant several witnesses who had seen the two students together on the night of the encounter and had said that the accuser appeared able to consent.

Columbia found the accused student guilty and suspended him. He sued, alleging that the university had discriminated against him on account of his gender, in violation of Title IX. U.S. District Judge Jesse Furman conceded that “Columbia may well have treated [the accuser] more favorably than [the accused] during the disciplinary process.” But Furman nonetheless dismissed the complaint, reasoning that Columbia might have acted not because of anti-male animus but because it feared that a fair process might lead to a not-guilty finding — which, if leaked to the public, might bring bad publicity. This motive, Furman held, would not violate Title IX.

The 2nd Circuit disagreed. In a July 2016 opinion, Judge Pierre Leval held that “a defendant is not excused from liability for discrimination because the discriminatory motivation does not result from a discriminatory heart, but rather from a desire to avoid practical disadvantages that might result from unbiased action. A covered university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination, notwithstanding that the motive for the discrimination did not come from ingrained or permanent bias against that particular sex.”

This standard would virtually ensure that any lawsuit by an accused student — at an elite school, at least — can survive a motion to dismiss, because elite schools harbor a well-founded fear that any ruling in favor of an accused student will bring bad publicity. Little wonder, then, that Columbia elected to settle the case, as did Cornell in another pending lawsuit in the 2nd Circuit.

Under the standard outlined by the 6t