A former University of Virginia law student claims in a lawsuit filed this week that the rules were unlawfully changed to be stacked against him, ultimately leading to discipline for sexual misconduct that hurt his career.
The former student – identified only as John Doe – claims the Department of Education requirements on adjudicating reports of sexual assault on college campuses lowered the evidentiary standard for finding a student responsible of misconduct.
In January, John Doe was found responsible for assaulting a female UVA law student after a night of drinking in August 2013, according to the lawsuit.
The woman who reported the incident said she was intoxicated and did not consent. The man, however, maintained the sexual encounter was consensual and that the female student did not appear impaired. University officials sided with the woman, determining she was unable to “effectively consent.”
The man was allowed to graduate and receive his degree, but was banned for life from all UVA activities, according to the lawsuit. A Washington-area law firm also rescinded their job offer following the school's investigation.
The former student was found responsible under the standard of proof mandated by the Department of Education (DOE), which calls for a “preponderance of evidence” – meaning that it is more likely than not that the assault occurred.
In April 4, 2011, the DOE sent a letter — known as the Dear Colleague Letter — to colleges and universities detailing how to properly investigate reports of sexual assault.
Prior to the DOE’s letter, UVA’s standard for finding a student responsible of sexual assault called for “clear and convincing” evidence.
The lawsuit claims the 2011 letter violated the Administrative Procedure Act — which acts as a check on the exercise of power of executive branch agencies, which are staffed by political appointees.
According to the ADA, if an agency is going to impose regulations that affect people, it has to tell them in advance and allow them a chance to comment. The lawsuit claims that the DOE skipped that step by not giving universities notice or a chance to comment on the letter.
“Our argument here is that the 2011 Dear Colleague Letter, no matter how well intentioned it may have been, imposed mandates on colleges…that were new, that had force of law, and that required them to take actions in such a way that [colleges] should have been allowed to comment,” Will Creeley, vice president of legal and public advocacy for the Foundation for Individual Rights in Education (FIRE), which sponsored the suit, told BuzzFeed News.
Since the letter was sent five years ago, FIRE has heard from a number of people affected by it, he added.
“The fact that colleges are being asked to do something incredibly difficult and in effect create a parallel justice system…is a recipe for failure,” Creeley said. “And failure is what we’re seeing. I don’t think ignoring input of stakeholders is the best way to produce an effective procedure to responding to these terrible crimes."
The lawsuit claims the plaintiff became "collateral damage of a well-intended but unchecked offensive" as schools scrambled to figure out how to abide by the DOE’s requirements.
“A growing number of innocent students have been trampled in the wake of these new requirements, found responsible for serious chargers based often on the flimsiest of evidence,” the lawsuit states.
The lawsuit, filed Thursday in federal court, claims that the adjudicator in the plaintiff’s case – a retired justice of the Supreme Court of Pennsylvania – called the matter a “very close” and “very difficult case,” and was required to find the man responsible because the evidence “slightly tipped” in favor of responsibility.
The lawsuit claims the arbitrator indicated that the former student would not have been found responsible with the previous “clear and convincing” standard.
“OCR’s goal is laudable in the highest degree; its attempt to get there at any cost, disturbing to the same degree,” the lawsuit states. “OCR has taken a ‘shoot first, ask questions later’ approach, and it has managed to empty more than a few magazines before being challenged about whether it is even allowed to do so.”
UVA spokesman Anthony de Bruyn told BuzzFeed News in an email that student privacy laws prohibit the university from commenting on the facts and circumstances of any particular case.