Recent articles and postings not only highlight the continuing focus on sexual assault cases on college campuses by the victims of those assaults, but also on the threat of litigation by those accused of the assaults. In the past two years, at least half a dozen actions have been brought against institutions by those accused, generally alleging various issues with the handling of their cases. A recent decision by a federal court in Ohio, in Wells v. Xavier University, illustrates institutions’ potential liability to the accused.
In this case, a student athlete at Xavier was accused, falsely he claimed, by another student of a sexual assault. The University’s Conduct Board found the student responsible for a “serious violation” of the Code of Student Conduct. At some point, the University apparently issued a statement, naming the student, and indicating that he was “found….responsible for a serious violation of the Code of Student Conduct” and that he was expelled from the University.
The expelled student brought an action against the University raising a number of claims. Among other things, he asserted that he did not in fact commit a violation of the Code of Student Conduct, serious or otherwise (he claimed that any sexual encounter was consensual), that it was apparent to the community that the University’s statement was referring to a sexual assault, and that he had therefore been libeled. In addition, he claimed that his rights under Title IX had been violated by the University’s conduct because it was reacting against him, erroneously, as a male and in response to several OCR investigations critical of how the University had responded to past sexual assault cases involving other students.
The University moved to dismiss these two claims, arguing that as a matter of law they failed to state a claim upon which relief could be granted. The Court denied this request, allowing both of these counts to proceed. Specifically, the Court concluded that the University’s statement (in the context of the student’s allegations that the Conduct Board was ill equipped to conduct a hearing on such a serious matter, that outside government authorities (the prosecutor) had questioned the outcome of this internal process, and that press coverage demonstrated damage to the student’s reputation) supported the libel claims. As the Court noted:
[I]t appears to the Court that the [hearing body], a body well-equipped to adjudicate questions of cheating, may have been in over its head with relation to an alleged false accusation of sexual assault. Such conclusion is strongly bolstered by the fact that the County Prosecutor allegedly investigated, found nothing, and encouraged [the University’s President] to drop the matter. Plaintiff’s allegations suggest [the President] did not do so due to Xavier’s mishandling of other cases that were at nearly the same time, subject to investigation by the OCR.
This, the Court concluded, was enough to allow the claim to proceed. In addition, the Court allowed the Title IX claims to proceed because the plaintiff adequately pled that the University had engaged in a pattern of decision-making that resulted in an alleged false outcome for him, in response to other OCR investigations. The Court also found that, at this early stage, the allegations were sufficient to support a claim of deliberate indifference by the institution because, he alleged, despite warnings from the prosecutor that the allegations against him were unfounded, the University proceeded with internal hearings “with the goal of demonstrating to the OCR that Xavier was taking assault allegations seriously.”
Of course it remains to be seen whether the plaintiff in this case will be able to prove any of these allegations. But at this stage the only question for the Court was whether, if his allegations were taken as true, they would form a basis for liability, and it answered in the affirmative.
This case serves as just one more reminder for institutions of the need to tread very carefully in the context of sexual assault cases. While they must be mindful of the victims’ rights, and protecting the campus community from further acts of misconduct, they too must be sensitive to the rights of the accused. Careful review of policies to ensure that they meet the requirements of state and federal law for both the accuser and the accused, training of those charged with applying those policies, and sensitivity to the rights of the individuals charged, are necessities. Institutions face potential liability from “both sides” and they need to know the proper path to walk.