At Columbia, suit alleges sexual assault investigation discriminated against male student| May 19, 2014
Amid a backdrop of intense activism, a male Columbia student is retaliating in federal court against an internal disciplinary conviction of sexual assault.
The student, who is only identified as John Doe in the suit filed Monday, alleges that Columbia administrators sought to make an example out of his case, that his rights under Title IX were violated and that administrators succumbed to external pressures from student activists in determining his guilt. He was allegedly suspended for up to a year and a half as a result.
According to a copy of the complaint, the plaintiff and a female student identified as Jane Doe belonged to the same group of friends and met the night of the alleged incident in a study lounge. They allegedly spent hours chatting and studying, after which the subject of hooking up was brought up.
“It was at Jane Doe’s suggestion that they engaged in one night of consensual sexual activity during finals week in the Spring of 2013 … inside Jane Doe’s suite bathroom,” after which they left each other’s company on “good terms,” the complaint reads.
Almost five months later, a timespan in which no allegations of improper behavior were made according to the suit, the student was allegedly informed that he was being investigated for nonconsensual sexual activity. The disciplinary process was marred, the complaint alleges, by Columbia’s failure to grant the plaintiff due process and to investigate the case properly.
The new case is a reversal of what has become a national narrative: that colleges are not doing enough and are not harsh enough in curtailing sexual assault on campuses.
“In Defendant Columbia’s finding that Plaintiff John Doe was guilty of sexual misconduct; Plaintiff John Doe [was] deprived of the most basic due process and equal protection rights and was discriminated against on the basis of his male sex,” the suit alleges. “In essence, there was a rush to judgment, pandering to the political climate on campus and pressure from wom[e]n’s groups, with little thought, if any, given the actual specifics.”
Robert Hornsby, a Columbia spokesman, declined to comment on the case.
Columbia has faced one of the strongest waves of student activism on the issue of sexual assault.
Twenty-three students filed federal complaints against Columbia this year for allegedly failing to protect victims of sexual assault, and nearly 100 Columbia faculty members signed a letter urging the administration to improve its sexual assault policies.
Last week, a list of five students labeled “sexual assault violators on campus” was circulated on campus buildings and through paper fliers. In addition, a female student filed a complaint with the police because, she said, Columbia had dismissed her case.
The White House has also weighed in, launching a nationwide initiative this year on sexual assault on college campuses. Most recently, the Department of Education released for the first time a list of colleges currently facing investigations under Title IX. The list did not include Columbia, although it did include Princeton, for a case expected to be solved later this month.
An important issue within the dispute is a standard of evidence called “preponderance of the evidence” that is widely used by colleges -- including Columbia, and championed by the Department of Education -- to adjudicate cases of sexual assault and other disciplinary violations.
To find someone guilty under the preponderance of the evidence standard, at least half of the evidence must point in the direction of guilt. In other words, that the defendant is more likely guilty than not. Meanwhile, Princeton uses a higher standard that requires “clear and convincing” evidence to establish guilt.
The suit raises the possibility that Columbia, and perhaps other colleges, have mishandled cases using the preponderance of the evidence standard. In this case, the plaintiff alleges that not enough evidence was produced and that the female student’s “say so” was taken at face value to establish the plaintiff’s guilt.
“I think there’s been an overcorrection to what clearly has been a problem,” the plaintiff’s lawyer, Andrew Miltenberg of Nesenoff & Miltenberg, LLP, said in an interview. “I don’t think that we’re taking a position that’s that different from the various women’s groups that are complaining about the process,” he added, explaining that sexual assault cases have been mishandled on both sides.
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As a sign of such overcorrection, the complaint points out that allegedly both the female student and the Columbia administrator who conducted the preliminary investigation appealed to reduce the severity of the sanction.
“This speaks volumes about the case,” Miltenberg said, adding that although he does not know what motivated the female student to put forth her allegations, her subsequent appeal might indicate her remorse from acting emotionally and not anticipating the severity of her actions’ consequences.
However, he argued that Columbia lacks legal resources and investigative expertise to handle cases of sexual assault policies, although he does not think that the preponderance of the evidence policy should be troubling in itself.
“If we’re going to keep the process in place that currently exists at the majority of universities, then I think the only way to do it is the way Princeton handles it, with clear and convincing evidence,” Miltenberg said. “There has to be a heightened evidentiary standard, or the process has to be made more expansive and more equitable.”
Princeton, however, has repeatedly faced criticism for being the only Ivy League school apart from Harvard that does not operate on preponderance of the evidence, allegedly preventing more offenders from receiving just punishments.
The plaintiff alleges that Columbia’s guidelines and regulations disproportionately affect male students, who claim they are discriminated against based on the higher incidence of male sexual assault crimes and are found guilty regardless of lacking evidence.
“You have people extremely well versed in academia and administrative issues making decisions in an area where they don’t have proper training,” Miltenberg said.
A few days after the initial incident, in May 2013, the female student allegedly sent the plaintiff a text message expressing concern that their sexual activity would have a “social impact” if found out by their shared circle of friends. Although both allegedly agreed that there was no need to worry, she allegedly expressed doubt about the encounter and its possible social repercussions again a few weeks later.
Later, she had a confidential conversation with her resident adviser, who summoned the plaintiff to talk about the case and informed him that she was required by state law to report the information to Columbia administrators, the complaint says.
Once the disciplinary process started, “utterly blind-sight[ing]” the plaintiff, the suit argues, Columbia failed to respect the plaintiff’s right to a fair process.
According to the complaint, the Columbia Title IX Investigator conducted a biased cross-examination rather than an objective recording of events. The complaint also alleges that the investigator recorded only hand-written notes that were slanted in favor of the female complainant, containing inaccurate and inadequately paraphrased statements from the plaintiff’s preliminary interview responses.
The complaint also alleges that the Title IX Investigator did not follow up on witness recommendations made by the student, did not advise him on his right to submit his own written statement to the hearing panel and did not discuss his right to seek the support of a student advocate.
The plaintiff is seeking to go to trial and demands financial compensation for damages to his physical and psychological well-being, reputation, athletic opportunities, career prospects and other expenses for eight separate charges. These include violation of Title IX amendments, breach of contract and unfair and deceptive trade practices.
Correction: An earlier version of this article misstated the first name of Andrew Miltenberg. The 'Prince' regrets the error.