Managing the Risk of Liability to Students Disciplined for Sexual Assault Erin Buzuvis, J.D. Professor of Law, Western New England University
Catch 22? Title IX requires prompt and equitable response to sexual assault, including a disciplinary process where appropriate. Title IX prohibits intentional gender bias in the disciplinary process.
Disciplined students Title IX claims: Erroneous Outcome erroneous outcome = (1) disciplinary decision was in error + (2) gender bias Sufficient allegations of error Respondent s cross-examination of complainant was restricted (Knox, Salisbury, University of Massachusetts) Respondent prevented from calling witnesses (Xavier) Respondent s documentary evidence excluded (University of Massachusetts) Respondent denied counsel in contravention of university policy (Xavier, Salisbury) Respondent not provided witness list and witness statements prior to hearing (Salisbury) Respondent given only 24 hours to prepare defense on a second charge (Appalachian State) Insufficient allegations of error Respondent assisted by a graduate student while complainant had attorney (Appalachian State) Respondent prevented from cross-examining complainant about her sexual history (Appalachian State)
Disciplined students Title IX claims: Selective Enforcement selective enforcement = student, even if guilty, was singled out for punishment because of sex Sufficient allegations of selective enforcement Disregarding the respondent s complaint of assault against another student (Vermont Law School) Insufficient allegations of selective enforcement No female respondents to compare to (Vassar) Male respondents disciplinary outcomes mixed (Vassar) Favorable treatment to student female explained by something other than sex (Ohio)
Disciplined students Title IX claims: Erroneous Outcome erroneous outcome = (1) disciplinary decision was in error + (2) gender bias Sufficient allegations of gender bias Men are invariably found guilty (Vassar) University was under investigation by OCR (Xavier) Title IX investigator endorsed a statement suggesting that consensual sex + woman s later regret = rape (Washington & Lee) Claim that university had written evidence of gender bias somewhere in its files (Salisbury) Insufficient allegations of gender bias Showing favoritism to complainants over respondents (DePauw, Miami, Vassar) Sexual assault trainings designed to protect all students and that avoid gendered assumptions about men as perpetrators and women as victims. (Salisbury) Mere fact that university had been criticized for its response to sexual assault (Miami)
Disciplined students Title IX claims: Disparate Impact --? Disparate impact = a discrimination claim based on a gender disparity that results from a gender neutral practice. 2001 Supreme Court ruling: no disparate impact lawsuits under Title VI (Alexander v. Sandoval). Title VI Title IX (University of South Florida and other cases). Insufficient evidence of disparate impact where even though all respondents are male, male respondents disciplinary outcomes mixed (Holy Cross)
Other claims by disciplined students Due Process (Constitution & state administrative procedure acts) (state schools) Inadequate notice of claims being investigated (Sterrett) Respondent prevented from cross-examine complainant and investigator (San Diego) Guilt inferred from respondent s refusal to testify (San Diego) Findings not supported by the weight of the evidence (San Diego) Punishment extended on appeal, without explanation (San Diego) Burden placed on the respondent to prove innocence (University of Tennessee at Chattanooga) Breach of contract, Negligence Violation of published policy (University of the South) Defamation Publically referring to respondent as a perpetrator of sexual assault knowing this to be false (St. Joseph s University)
References Alexander v. Sandoval, 532 U.S. 275 (2001). Mallory v. Ohio Univ., 76 Fed. Appx. 634 (6th Cir. 2003). Yusef v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994). Doe v. Salisbury Univ., 2015 WL 5005811 (D. Md. Aug. 21, 2015). Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015). Tanyi v. Appalachian State Univ., 2015 WL 4478853 (W.D.N.C. July 22, 2015). Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521 (D. Mass. July 14, 2015). Doe v. University of South Florida Board of Trustees, 2015 WL 3453753 (M.D. Fla. May 29, 2015) Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015). Sterrett v. Cowan, 2015 WL 470601 (E.D. Mich. Feb. 4, 2015) Blank v. Knox College, 2015 WL 328602 (C.D. Ill. Jan. 23, 2015). Sahm v. Miami Univ., 2015 WL 93631 (S.D. Ohio Jan. 7, 2015) King v. DePauw Univ., 2014 WL 4197507 (S.D. Ind. Aug. 22, 2014). Harris v. St. Joseph's University, 2014 WL 1910242 (E.D. Pa. May 13, 2014). Wells v. Xavier Univ. 7 F. Supp. 3d 746 (S.D. Ohio 2014). Vaughn v. Vermont Law School, 2011 WL 3421521 (D. Vt. 2011). Doe v. Univ. of the South, 2011 WL 1258104 (E.D. Tenn. 2011). Mock v. University of Tennessee at Chattanooga (Davidson County Chancery Ct., Aug. 4, 2015). Doe v. Regents of the University of California San Diego (San Diego County Supr. Ct. July 10, 2015).