Students who have been found responsible for campus sexual assault and are expelled sometimes sue their universities. But they have had mixed success in the federal courts.
The Washington Examiner spoke with one lawyer, Andrew Miltenberg, who has filed many cases on behalf of accused students. He described what he’s learned from cases that have been dismissed.
“I’ve learned that the federal courts are very good courts but that they’re reluctant to grasp on to this issue of bias or prejudice, unless it appears to be widespread,” Miltenberg said. “And one of the problems is that in any one of these cases you’re only really looking at a singular event.”
Miltenberg described how Title IX’s original purpose — to make sports more accessible to women — was easier to use to find discrimination. One could clearly see if a school was providing more funding to male sports than female sports, or allowing only men’s teams to use certain facilities. But since sexual assault was redefined to be a form of sex discrimination, and Title IX has been reinterpreted to require schools to adjudicate felonies as discrimination, the evidence is harder to see.
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“It’s very hard for the court to look at it the way I think courts need to, which is, as a cumulative series of events that are happening across the nation or, you know, multiple times at the same institution,” Miltenberg said, adding that it would take a “volume” of sexual assault cases to get the federal court to notice that this is a pervasive problem.
He said that many times there isn’t enough evidence at the outset of the case to clearly show bias. In essence, he said, some federal judges have been looking for a smoking gun such as emails showing administrators conspiring to find male students responsible based on their sex.
“Now, of course there are some cases where we’re fortunate enough where we’re able to come across evidence early in a case or statements early enough in a case where it gets us that at the outset,” Miltenberg said. “But, you know, the courts are supposed to take everything plead in a complaint as true and assuming such is true, find, you know, whether or not there is a viable cause of action.”
Miltenberg also said that in the cases that have survived a motion to dismiss by the university, the schools have settled “very quickly.” That’s because getting into discovery is the best chance some students have to find evidence of a bias. That, however, creates a “catch-22” for students who need evidence to prove bias in order to get to the discovery phase but can’t obtain that evidence without first getting to the discovery phase.
In the meantime, attorneys filing these claims will find better luck in state courts or will have to rely on causes of action other than Title IX discrimination, such as breach of contract.
Miltenberg said he’s heard anecdotally from some advocates that the system is now fair, and that the cases still being decided are leftovers from a time of unfair trials. Miltenberg, however, doesn’t believe we’re getting close to the end of unfairness in these cases, as he’s “getting more calls than ever,” including calls about encounters that occurred in the past month.
