Title IX Defense Blog

Practical Advice for the Defense of a Title IX or Campus Sexual Assault Proceeding

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Grounds for Suing a University for Unfair Campus Disciplinary Proceedings

People accused of sexual assault charges on college campuses generally don’t find any sympathy for their due process rights in the U.S. Department of Education, from their schools, or from public opinion. But the courts are increasingly giving relief to men who have had their rights trampled.

Of course, getting to court is expensive. Sometimes attorneys’ fees are available at the very end of the litigation, but to get to the end of a lawsuit can be an incredibly expensive undertaking.

It’s also an uncertain one. The courts have shown some sympathy, but there are many losses along the way.

Often, when considering a lawsuit, it makes sense to think about what you would settle for. It makes sense to be clear about what you want. If you want a complete exoneration, you will likely have to go the distance—few schools will simply take away a finding or reverse a disciplinary decision without an order from a judge. A modification of the sanction would require the accuser to be notified, and schools fear that if an accuser is told, she’ll then complain to the U.S. Department of Education, which will land the school in trouble. But sometimes, with a good deal of effort, a school will agree to change how the charge is reflected on the student’s transcript or what records would be disclosed to another school in the future.

If you’re interested in a lawsuit, though, here are the basic claims people bring in lawsuits with schools. Keep in mind that this is a very cursory overview. If you have more questions, you should do more research or consult with a lawyer. Most lawyers will require you to hire them before they do a full review of whether you have a lawsuit that is likely to win. We are often hired by people who’ve already gone through the disciplinary process and want us to tell them whether they have a valid legal case against the school.

  • TITLE IX

Title IX protects men as well as women from discrimination on the basis of sex in educational opportunities. Courts have been relatively hostile to arguments that because these processes are unfair, and because most of the accused people put through them are men, that must be due to gender bias. In other words, if all you did was lose a swearing contest before a kangaroo court, you probably won’t have a valid Title IX claim.

However, there are two kinds of claims under Title IX that can work:

  1. you may have a claim if you can prove that the outcome was erroneous and put forth some actual evidence of gender bias (not just assumptions), or
  2. if you can find statements by the school suggesting such bias.

If you win the claim, the school could be forced to pay all or part of your attorneys’ fees.

  • BREACH OF CONTRACT

Some states have laws that say that a school’s code of student conduct is a contract between the student and the school. If the school violates its code, that can give rise to a breach of contract lawsuit. Normally, this would happen when the school gives a student a certain process and then simply ignores that part of its code when it holds the hearing. This happens far more often than you would expect; in fact, we rarely see a case in which the school does everything that it’s promised to do.

One tricky aspect to these claims is that you will generally have to prove that any violation from the school’s code was material—that is, that it mattered to the result.

For example, if you sign a contract to have your roof fixed by Thursday and the contractor finishes it on Friday, that’s probably not a material breach of the contract. You got your roof, and absent a hurricane, one day probably didn’t make a difference.

In the same way, if you’re guaranteed a five-minute break between witnesses and you only get a four-minute break, you’d have to show that the extra minute would have mattered. Generally, that means you’d have to show you’d have a decent chance of getting a different result if you’d been given a break of the right length.

So, when you’re thinking about whether you might have a good breach of contract claim, use common sense, and put yourself in the judge’s shoes: if you were the judge, would you really think this violation mattered? Or would you think the plaintiff is being a bit ticky-tacky? Judges tend not to like ticky-tacky.

  • DUE PROCESS VIOLATIONS

Public schools are branches of the government. The U.S. Constitution and many state constitutions require schools to give you due process before they punish you. (By contrast, and contrary to what many people think, the U.S. Constitution doesn’t apply to private schools.) Generally speaking, due process means that you must have notice of the charges against you, that the notice must be specific enough so you can defend against the charges, and that you must have a meaningful opportunity to plead your case in front of a neutral decision-maker.

  • FREE SPEECH/FIRST AMENDMENT

We are seeing a rise in “intimate partner violence” claims coupled with sexual assault allegations. Basically, many schools believe they should be policing their students’ romantic relationships. So when one person in a romantic relationship says something mean or offensive to his or her partner, schools sometimes charge that as a separate violation.

Leaving aside that this is an insane policy, it may also violate the First Amendment in some cases. If you have been found responsible and punished for saying things to your girlfriend, you may have a viable claim under the First Amendment.

  • ADMINISTRATIVE MANDAMUS

State schools are branches of state governments. Many state governments set up a process to challenge, in state court, a state government decision. The rules can be a little complex, and they depend a lot on the laws of the specific state at issue, but they frequently allow for a challenge to a decision because it was not based on “substantial evidence.” Again, the details of what that means and how it’s been interpreted vary significantly from state to state. An experienced lawyer should be able to tell you whether administrative mandamus is available to you.

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