School sex assault policies challenged
2 students accused at A&M, UT say officials botched reviews of cases
Two male students accused of sexual misconduct say the University of Texas at Austin and Texas A&M University botched their cases, the latest in a growing backlash against federal requirements that critics say improperly favor campus assault and harassment complainants over the alleged perpetrators.
Both men say they were improperly punished after faulty investigative and review processes at their respective universities. The UT-Austin student has sued the university, saying he was suspended after the university’s president improperly reversed the findings of a sexual misconduct investigation.
“Universities, I think, now are going overboard the other direction and trying to make it clear that they’re on the forefront of these movements,” said Brian Roark, an attorney representing the UT-Austin student.
Their complaints come as President Donald Trump’s administration appears to offer a more sympathetic ear to students accused of sexual misconduct.
U.S. Education Secretary Betsy DeVos last month invited students who said they had been falsely accused to the Department of Education, along with victims and subject matter experts.
Candice Jackson, who holds a top White House civil rights post, told the New York Times that same week that student drinking and women regretting having sex lead to 90 percent of campus sexual assault accusations. She cited no evidence and later walked back the statement.
The turn away from the Obama administration’s messaging on campus sexual assault and the slew of complaints about university adjudication could spark calls for additional recourse by accused students, like those at A&M and UT.
Backlash, said Roark, is coming from “people finally starting to realize that this has gotten out of control.”
UT leader overturned ruling
Roark’s case involves two UTAustin students — one male, one female — who went to the woman’s sorority party together. Both acknowledge they gave verbal, affirmative consent before sleeping together that night, but the female student later said she was too intoxicated to make a sound decision.
Initially, a university investigation found the sex was consensual, but UT-Austin President Gregory Fenves overturned that ruling on appeal, writing that “under university rules, someone who is intoxicated cannot give consent to sexual activity because they are incapacitated.”
The male student was suspended for five semesters.
“When you lower (the incapacitation) standard to simply intoxication … that would wipe out most of my sexual experiences in college, and most other folks’ I know, as well,” Roark said.
The lawsuit, filed Monday, accuses Fenves of reversing the decision in an effort to take a hardline stance on campus sexual assault, fearing that UT-Austin would “suffer the same public relations disaster that occurred at nearby Baylor University” if administrators did not appear to take the crime seriously.
The lawsuit also alleges that Fenves stepped in because the female student is the daughter of a donor.
UT-Austin spokesman J.B. Bird said in a statement that the university does not comment on pending litigation or student discipline.
“Our policies and procedures in such cases are followed and applied with care and diligence at all levels, including appeals to the president during which he makes decisions only based upon the record in the case,” he said.
UT-Austin administrators were unavailable for comment Tuesday, he said.
The federal Office for Civil Rights in the Department of Education opened an investigation into Texas A&M last month, probing whether the university discriminated against an accused male student because of his sex. The complaint invokes Title IX, the federal nondiscrimination law that forbids educational institutions from sex-based discrimination.
Texas A&M suspended the male student after a judicial conduct hearing, according to the Department of Education.
The student said he did not have equal opportunity to provide witness testimony and submit character evidence to a university conduct panel.
Allegations not ‘for fun’
Texas A&M has seen at least two similar complaints in recent years, one at the center of a separate ongoing Title IX probe and the other in a 2015 lawsuit.
A&M administrators did not respond to requests for comment. The university’s website lists possible sanctions, frequently asked questions and resources, rights and options for both victims and accused. Both parties, the website says, will have opportunities to present witnesses and other evidence.
Sexual assault is a historically underreported crime, and several studies have shown that the percentage of false reports is low.
Christopher Kaiser, the director of public policy and general counsel for the Texas Association Against Sexual Assault, said he fears the U.S. Department of Education could come to view campus sexual assault judicial proceedings as unfair to the accused, which he says is false.
In recent years, he said, there has been cultural and some institutional movement toward believing victims and giving them fair treatment.
An outside investigation in 2016 concluded that Baylor “directly discouraged complainants from reporting,” and a Stanford University student convicted of sexual assault saw mere months behind bars.
“People aren’t making these allegations for fun,” Kaiser said.
Will Creeley, senior vice president of legal and public advocacy at the Foundation for Individual Rights in Education, said federal recognition that the current system is flawed allows for “the possibility of change.” The foundation has criticized existing student conduct hearings as “kangaroo courts.”
Some critics point to a lower standard of evidence for campus conduct proceedings as unfair to accused students and question whether cases are investigated fairly. Creeley said litigation from accused students has sped up in recent years as the issue has gained visibility.
Still, he said, the Trump administration’s future direction is not yet clear.
Campus rape, sexual assault and harassment received a fresh spotlight in former President Barack Obama’s administration, as officials offered guidance on how to implement Title IX.
Vice President Joe Biden promoted a national “It’s On Us” campaign, through which chapters from UT-Austin to Baylor to Texas Tech University condemned campus sexual assault.
“We can never say enough to survivors: I believe you,” he said in an open letter to the Stanford victim. “It is not your fault.”
Trying state courts instead
The Department of Education’s Office for Civil Rights opened hundreds of investigations into colleges and universities nationwide. Thirteen investigations remain open in Texas.
DeVos’ meeting with accused students was a cause for concern for clients of Wendy Murphy, an adjunct professor of sexual violence law at the New England School of Law. She said she now points victims to state court to pursue justice, calling it “completely insulated from federal shenanigans.”
“When your job is to protect student civil rights, which includes victims of sex-based harm, and you start talking about protecting offenders’ rights, there’s no place else for victims but (state) courts.”