Fixing University Justice

In reaction to the U.S. Department of Education Office of Civil Rights’s Dear Colleague Letter of April 4, 2011, American universities have eliminated due process for students accused of sexual misconduct.

The Dear Colleague Letter does not relieve public universities of their obligation to provide due process to accused students. So public universities are caught between the anvil of the Dear Colleague Letter and the hammer of a civil-rights lawsuit.

Private universities are not state actors, and do not have the same due-process obligations: They may kick students out for any reason or for no reason. But they are obligated not to defame students, and publishing (to other universities, for example) false allegations of sexual misconduct is defamation. A university that is required by law to report findings of sexual misconduct on students’ transcripts probably has a qualified privilege to do so (it is privileged unless done with actual malice, that is, reckless disregard for falsity), but a private university that is not required to do so but does is betting heavily that it is right.

But, you might think, the standard for colleges to find sexual misconduct — a preponderance of the evidence — is the same as the standard in a defamation suit. So the school’s finding that  sexual misconduct occurred bars the disciplined student from suing for defamation.

Except that the school is not a court, and isn’t providing due process anyway, so the school’s determination means next to nothing. If the school’s process is inadequate, and the school finds the student liable, the school still bears the risk of being wrong.

How does liability play out?

X and Y are students at Arborio University. X falsely accuses Y of sexual assault. Rather than go to the police, she complains to the university’s office of PseudoJudicial Programs (“PJP”). PJP does an investigation of sorts, but mindful of the Dear Colleague Letter’s admonition that “schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant,” and believing that women never make false allegations of sexual misconduct, PJP is careful not to provide Y with too much process. It finds Y liable, expels him, and notes the reason for the expulsion on his transcript.

Y applies to several other universities, all of which reject him when they get his Arborio University transcript. His life is wrecked. In desperation, Y gets a lawyer with what remains of his college fund. The lawyer investigates, and finds a Snapchat conversation between X and a mutual friend of X and Y in which X admits that she made the allegation up. Y files suit against Arborio University.

Y v. Arborio 

Arborio has a) published an unprivileged statement about Y; b) that is defamatory. These are the elements of defamation, and Y’s damages are huge.

The fact that PJP performed an investigation that satisfied it that sexual misconduct had occurred is not relevant because actual malice is not an element of Y’s defamation suit. When Arborio published a statement that, if untrue, was defamatory, it assumed the risk of PJP getting it wrong. Arborio writes Y a big check, reducing its huge endowment by only a little. The harm to its reputation when the suit is publicized is much more damaging.

Two things would likely have kept Arborio from having to write a check. First, a higher burden of proof: The higher the burden, the less likely the university would have made this type of error. And second, more process for the accused student: If Y had been able to have a lawyer investigate and present his case, it also would have reduced the likelihood of PJP erring on the side of liability. If Arborio had not found Y liable, it would not have defamed him.

What about X?

X, however, still defamed Y by making the false report. Her false report was not privileged (even if it was qualifiedly privileged, she acted with actual malice because she knew that Y had not sexually assaulted her). But if Arborio does not find Y liable, Y will get over it. His damages are not inconsequential, but they are not huge, and a defamation suit against X is probably not worthwhile. Besides, PJP will certainly find some reason to retaliate against Y if he files a defamation suit against X — they’ll call the suit retaliation against X (which it is, but societally sanctioned retaliation — people generally consider it okay to seek to punish people for defamation). So if Y is not found liable, X is probably safe from suit.

If Y is found liable for a sexual assault that didn’t happen, though, it’s Katy bar the door. X is a defendant in the defamation suit, along with the university or alone. (Even if the university is public, with sovereign immunity, X has no such immunity.)

The risk is real.

False allegations of sexual assault on college campuses happen. The university cannot control whether allegations are true or false. It is obligated to use a preponderance-of-the-evidence standard to evaluate complaints. That standard creates a greater risk of erroneous findings of liability than a higher standard (clear and convincing evidence, for example) would. 

When the university takes into account the complainant’s Title IX protections in determining the process due to the alleged perpetrator, that process cannot help but be curtailed. Less process for the accused creates a greater risk of errondous findings of liability than more process would. And erroneous findings of liability are potentially costly to the university and the accuser.

And that’s the good news.

 It would not take many universities and complainants being held dearly liable in civil court for false accusations to make an impression on others who might be tempted to make false complaints, and other universities that might be tempted to favor the accuser over the accused.

Right now universities have no great motivation to treat accused students fairly. Civil liability changes that. Universities caught between the hammer of civil liability and the anvil of the Dear Colleague Letter are going to find a way out, and the easy way out is to provide  the accused student with more rights that might keep him from being wrongly expelled.

I’d take that case.

The plaintiff who sues the accuser and the university for defaming him needs three things: He needs to be actually innocent, because that’s the point. He needs to have the will for a protracted fight, because filing the lawsuit is going to call attention to him. And he needs deep pockets, because this is not a case a rational lawyer is going to take on a straight contingent-fee basis.

(It would help if he also had witnesses who could prove his innocence, but that can come later.)

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