Due Process Legal Update: Complaints Keep Rolling In

Yesterday, in a lawsuit sponsored by FIRE, a former University of Virginia School of Law student challenged the Department of Education’s unlawful “preponderance of the evidence” mandate. While that suit has made big news for its direct challenge to the federal government, it is far from the only lawsuit that has been filed recently in response to the due process crisis on college campuses. In fact, more than ten new complaints have been filed in the past two months alone.

Last week, former Yale University basketball captain Jack Montague made good on his promise to sue Yale over alleged procedural unfairness in the sexual misconduct proceedings that led to his February 2016 expulsion. Montague’s complaint alleges he was “denied the most rudimentary elements of faimess promised to him by Yale.” According to Montague, Yale even breached its own confidentiality requirements by disclosing to his accuser the fact that Montague had previously been involved in another student conduct proceeding—a disclosure which, the complaint alleges, led to the accuser’s decision to participate in a formal conduct process. Montague also alleges that he was insufficiently informed of the details of the allegations against him until late in the disciplinary process, and that no one at Yale told him or his hearing advisor that he was expected to prepare and present an opening statement at the hearing.

In another federal complaint filed on May 27, a student who was suspended from Lynn University in Boca Raton, Florida alleges that in his sexual misconduct proceeding, his accuser was allowed to be actively represented by an experienced lawyer—in violation of the university's policy—while he was limited to a silent, non-attorney advisor, who in his case was his mother.

In a federal lawsuit filed on May 23, a Hispanic student expelled from Indiana’s Butler University claims the university denied him a fair proceeding and discriminated against him on the basis of both race and sex in its handling of its sexual misconduct case against him. Among other things, the student alleges he was denied the right to confront his accuser or the witnesses against him, instead having to submit any questions to the hearing panel chair, who would decide which ones to ask. This is the second complaint in the past six months to allege racial discrimination in addition to gender discrimination; a December lawsuit against the University of Findlay in Ohio makes similar allegations with regard to that university’s handling of sexual misconduct claims.

In Ritter v. Oklahoma City University, filed on April 28, a federal district court granted the plaintiff’s motion for an injunction, preventing the university from enforcing its sanctions against a student expelled for sexual misconduct until the case can be further litigated. To obtain a preliminary injunction, a plaintiff must show not only that he or she will suffer irreparable harm in the absence of an injunction, but also that there is “a substantial likelihood of success on the merits.” The court held that the plaintiff was likely to prevail on his breach of contract claim, and noted:

The court recognizes that colleges must take seriously allegations of sexual assault. It also recognizes that handling claims of sexual misconduct presents sensitive and difficult issues. Nonetheless, universities must ensure that the rights of both the accused and the accuser are protected.

These are just some of the complaints that have been filed over the past two months. In addition, Cornell University, the University of St. Thomas, Stanford University, the College of Wooster, the University of New Mexico, and Colorado State University Pueblo have all also found themselves on the receiving end of a lawsuit over their treatment of students in sexual misconduct proceedings.

As these cases and others work their way through the judicial system, this area of the law will continue to develop—hopefully in a way that recognizes the unfairness of labeling students as sexual offenders without granting them the fair process necessary to ensure a reliable outcome.

As always, FIRE will keep you posted.