Recent headlines make clear that sexual harassment is a serious problem in our society. It has also been a focus of attention on school campuses. Since the adoption of Title IX, colleges and universities, as well as other educational institutions, have taken steps to address complaints by students that they have been harassed or sexually assaulted; however, there is increasing push back regarding the procedures by which academic institutions adjudicate allegations of sexual misconduct, as well as on the training for those employees responsible for responding to allegations of inappropriate student conduct.

As noted in our earlier post from September 2017, the U.S. Department of Education has rescinded prior Title IX guidance, replacing it with an interim document intended to guide educational institutions pending the development of new rules, further complicating ongoing efforts to comply with Title IX and address harassment and assaults. Amid this backdrop, there continues to be litigation related to the imposition of discipline in cases involving sexual harassment and assault. A recent case highlights the need to find a balanced approach to victims and the accused in investigations and in the decision-making process, underscoring the need to be sensitive not only to the person who alleges he/she is a victim of a sexual assault on campus, but also to the rights of the accused.

Title IX provides three possible theories for attacking a disciplinary or expulsion decision: 1) erroneous outcome, 2) selective enforcement, and/or 3) deliberate indifference. In Saravanan v. Drexel University, a federal court determined that an expelled student provided a sufficient factual basis to support an erroneous outcome claim and avoided an early dismissal of his case. As a result, the plaintiff, a male student, is now pursuing his Title IX rights based on his gender.

To establish an erroneous outcome claim a plaintiff must allege that he was innocent and wrongly found to have committed an offense. He/she also must cast doubt on the outcome of the disciplinary proceeding and allege that gender bias was a motivating factor behind the erroneous finding. In the Saravanan case, the male student alleged that the disciplinary process was biased as the informational document distributed to the University’s public safety officers concerning date rape and acquaintance rape presented a pro-female and anti-male bias by portraying women as victims and men as perpetrators of sexual assault. The document included information for women about how to avoid rape, while its advice to men was “to think about whether you really want to have sex with a woman who does want to have sex with you.” The male student also pointed out that the materials for taking reports and carrying out investigations of campus sexual assaults portrayed women as the victim of men and made no mention of men being victims.

Besides the written guidance, the Drexel case included a claim that the response to the male student’s allegations against a female student were essentially ignored, despite the fact that he had provided a copy of his sworn in court testimony that the female student had sexually assaulted him as part of his successful effort to obtain a court order to have her stay away from him. The male student also presented evidence that the female student had posted on Snapchat an acknowledgement that she had sexually assaulted him. He alleged that the University characterized his claim that he was raped as “ludicrous,” and that one University official told him that she had never heard of a woman raping a man, while another suggested that he was stalking the female student. When the University did finally begin an investigation into his allegations, the questions posed (which included the investigator asking him if he “enjoyed it”) revealed a gender bias. The court found that the male student’s allegations presented a possible culture of gender bias against males claiming sexual assault by females In its findings, the court specifically noted that the male student’s complaint had included alleged statements from persons who had the authority to institute corrective action which indicated that these individuals did not believe him as well as University materials that focused exclusively on women as victims.

This is not the only case of a male complaining about a culture of gender bias. Other federal district courts have found that a college’s failure to conduct a thorough, impartial, and fair investigation and fact-finding process created a flawed system. Some of the procedural flaws have included an investigator’s failure to seek out contemporaneous text messages; a College’s failure to provide the accused with the initial statement of the accuser which was made to the College; improper instructions to the Hearing Board as to the College’s Policy and Procedures; interference by administrators with the Hearing Board’s deliberations; and the denial of an appeal despite the new information provided that revealed that the accused was innocent and that the conduct attributed to him was fabricated. In yet another court case, the student was allowed to pursue his claim because a university employee said male students were “guilty, until proven innocent” and that the university had “loaded the dice against the boys.”

These cases suggest that the training given to those responsible for investigating and adjudicating complaints need to be better trained to approach each situation with an open mind. Everyone is interested in providing a safe campus for all students; but any investigation or discipline process must be fundamentally fair. To achieve this, educational institutions must ensure that there is a balance protecting the accuser with steps to protect the accused. As these situations can often be “she said/he said” cases, the investigation and decision making must maintain objectivity, neutrality and avoid any appearance of bias.