Unfair treatment alleged in school suits

UD’s Pierre says he had consensual sex with fellow student.

About this investigation

Our reporters examined hundreds of pages of public records to bring you this story. For more I-Team stories see our investigations page on MyDaytonDailyNews.com.

Colleges and universities under intense public and federal pressure to tamp down on campus sexual assaults are facing mounting accusations that they rush to judgment against the accused with biased policies and poorly trained hearing boards.

Just since March, six Ohio universities have been sued in federal court. The separate lawsuits each allege that unfair treatment in sexual misconduct cases led to male students being kicked out of school even though the facts are in dispute and no criminal charges are involved.

Rape victim advocates and the schools themselves counter that universities have a responsibility to keep campuses safe and that using a criminal standard to apply discipline would worsen already low assault reporting rates.

“I do believe from where we sit that the criminal justice process isn’t the only solution,” said Allison Kiss, executive director of the Clery Center on Campus Safety.

But Joshua Engel, a Mason attorney who is representing students suing Ohio State University, the University of Cincinnati, Ohio University and Marietta College, said universities have a financial motive for unjustly treating the accused.

“Schools are scared,” he said. “They’re scared that if they don’t crack down and show they are tough on allegations of campus sexual assault, that the federal government is going to come in and take all their money. How do they keep the federal government from investigating them and threatening their funding? The way to do that is by throwing kids out of school because that impresses the federal government, evidently.”

‘The most heinous crime’

The Office of Civil Rights in 2011 started leaning heavily on schools to aggressively investigate sexual misconduct and the White House in 2014 formed a task force on the issue.

Campus groups too have applied pressure. Last month, Vice President Joe Biden rallied a crowd at Ohio State University to help prevent sexual assault, calling it “the most heinous crime that can be committed.”

Saundra Schuster, a board member for the Association of Title IX Administrators, said schools have struggled to keep the pendulum from swinging too far in the direction of the alleged victim.

“The scrutiny on schools to get it right is hard,” she said. “I think there’s certainly the potential in some cases, especially early on, for schools to be victim-centric and fearful about having an Office of Civil Rights complaint that they placed a heavier thumb on the side of the victim.”

Across the country, schools are facing these lawsuits at the same time they are trying to make the process more fair, she said. Several suits have been successful in outing poor staff training, bad school policy or investigative shortfalls.

In addition to claims of injustice, the lawsuits seek damages that could be costly to these private and public universities. Xavier University agreed last year to an undisclosed financial settlement to resolve a lawsuit brought by expelled basketball player Dez Wells, who went on to play at the University of Maryland and is currently in the NBA.

UD lawsuit

The same attorney who represented Wells, Peter Ginsberg, filed suit this month in federal court against the University of Dayton over the suspension of UD basketball player Dyshawn Pierre.

Pierre was suspended after a female student accused him of assaulting her in an incident that he said was consensual. She claims she repeatedly said no.

The Montgomery County Prosecutor’s Office did not press charges against Pierre, citing a lack of evidence. But Title IX, a federal anti-discrimination law that all universities must follow, applies standards less stringent than criminal standards on sexual assault investigations.

And unlike criminal cases, which have to be proven “beyond a reasonable doubt,” the hearing board standard under Title IX is similar to a civil suit, in which accusers need only prove that it is “more likely than not” that misconduct has occurred.

Kiss, of the Clery Center on Campus Safety, a campus safety advocacy group, said a two-tiered approach is needed because the criminal justice system – with its backlog of rape kits and low conviction rates — is daunting and cumbersome and doesn’t have the best track record in dealing with rape.

Universities in recent years also have worked to refine the definition of consent in their student handbooks, going beyond what is spelled out in state law.

“Effective consent is granted when a person freely, actively, and knowingly agrees at the time to participate in a particular sexual act with a particular person,” UD’s student handbook explains, noting: “There is no consent when agreement is only inferred from a person’s silence or lack of resistance.”

Miami University raised its standard for consent in an update to its policy in July.

“Basically there has to be an expression of consent up front,” Miami Title IX Coordinator Becca Getson said. “You need to make sure and ask.”

The student policy at Antioch College in Yellow Springs received national attention in 1990 when it was lampooned on Saturday Night Live. The policy, unique for the time, required that consent be verbal and pertain to “each new level of sexual activity.”

UD hearing process

Pierre’s attorneys blasted the University of Dayton’s administrative hearing process, saying it failed “to adhere to fundamental notions of fairness, good faith in impartiality,” and that investigators and hearing board members “lacked the necessary training and experience to evaluate sexual assault allegations.”

The Title IX investigation, for example, included a medical examination but none of the hearing officers knew how to read it, according to the lawsuit.

“Since we are not medical experts and the members of the Hearing Board, if any is convened, will not be medical experts, we wondered if you could help us understand the physical findings,” wrote one of the two UD law professors involved in the hearing process to the medical center director who submitted the test. The lawsuit alleges they failed to note that the medical report showed no sign of forced sexual activity.

The hearing lasted only 20 minutes, according to the lawsuit.

The lawsuit also alleges that the university failed to accommodate Pierre’s learning disability, and penalized him for providing a written statement “because of the effects his learning disability has on his ability to articulate his thoughts.”

In a hearing Thursday before U.S. District Court Judge Thomas Rose, Ginsberg argued for a temporary restraining order and preliminary injunction that would allow Pierre to return to school. During the proceeding, he said UD’s hearing process was “fundamentally disgusting, not only unfair.”

The judge said he would rule as quickly as possible.

In a response to the lawsuit, UD said the school acted according to its policy and within its rights, and that Pierre’s demand to be let back into school should be thrown out.

“Mr. Pierre’s claims are unlikely to succeed on the merits, his one-semester suspension will not subject him to irreparable harm, and he ignores the harm his requested injunctive relief would impose upon others and the public,” the response says.

‘A foregone conclusion’

Dayton attorney Marty Malloy, who represented a student accused of sexual assault before UD’s hearing panel, said he wasn’t allowed to address the panel directly and could only sit and listen as his client told his side of the story.

According to Malloy, panel members asked his client just two questions. The hearing lasted 20 minutes and resulted in the student’s expulsion.

“The actual hearing almost felt like a foregone conclusion,” he said.

In contrast, Malloy says he is defending a client with a pending criminal rape case that he expects to take two days in court.

Malloy said he reviewed UD’s rules and found numerous protections and accommodations for the alleged victims of sexual assault, but few for the accused.

“The lawsuits are against the universities, but they should be against this organization the (federal) government has that says this is what the rules are and if you don’t follow them we’re going to take your money away,” he said.

Schuster, of the Title IX administrators association, lauded UD’s Title IX program.

“I use them as an example of a gold standard for ways their policies are done, their dedication to engage in substantial training for their hearing panels, their investigations,” she said.

Other lawsuits share similar themes with the UD case. Several filed by Engel include this preamble:

“After years of criticism for being too lax on campus sexual assaults, colleges and universities are relying on Title IX to crackdown on alleged perpetrators. Unfortunately, this crackdown has gone too far. Problems include: accused students effectively are presumed guilty; instead of requiring accusers to prove they were assaulted, the accused students have to prove they had consent; and schools apply the very lowest standard of proof – preponderance of evidence.”

Engel accuses schools of packing hearing boards with academics and administrators whose only training is a brief PowerPoint presentation. He believes the cases should be entrusted to disinterested third parties who aren’t under political pressure to find innocence or guilt, and should use time-tested rules of judicial proceedings.

Assaults under-reported

The federal government in recent years has moved to address the vast under-reporting of sexual assaults on college campuses.

In his address to Ohio State, Biden talked about his work passing the Violence Against Women Act and the historical failures that led him and U.S. Secretary of Education Arne Duncan to threaten universities with Title IX investigations and funding cuts if they failed to take sexual assault seriously.

“Universities have a legal responsibility and moral obligation to protect students and hold perpetrators accountable,” he said, calling for a culture “where survivors are supported and attackers are viewed as pariahs.”

Biden’s speech helped launch the “It’s On Us” campaign that universities across the state use to advocate support for sexual assault survivors and encourage students to intervene if they may be able to prevent misconduct.

And it came the same week the American Association of Universities released a survey of more than 150,000 college students at 27 campuses — including Ohio State — that found 23.1 percent of female undergraduates were victims of sexual misconduct ranging from groping to rape.

The study found 28 percent or less of even the most serious incidents are reported. Of those who said they were raped and didn’t report it, more than one-third “said they were”embarrassed, ashamed or that it would be too emotionally difficult,” the report says. “Almost as many said they…did not think anything would be done about it.”

Expulsion, suspensions rare

While universities are being accused in lawsuits of treating those accused of sexual misconduct unfairly, records show only a minority of such cases result in serious disciplinary steps.

The federal Clery Act requires universities to issue annual reports tallying the number of sexual assaults reported to administrators. The most recent reports, released this month, show that Ohio State, UC, Miami, Wright State and Central State had a total of 189 forcible sexual assaults reported from 2012 through 2014.

But over those same years, all five of these universities combined suspended or expelled a total of 46 students.

Title IX administrators at area schools said there are several reasons for this: sometimes the perpetrator isn’t known, or isn’t a student. And often the victim will decide not to move forward with an administrative hearing, though the school can proceed anyways if it feels campus safety is at risk.

Many schools, including Ohio State and UC, saw spikes in the number of reports in 2014.

“Students are talking about this, students are aware that laws exist, that they have rights, and they’re holding — in a grassroots movement that has swept across the country – colleges and universities accountable,” Kiss said.

Miami U facing opposing suits

Miami University is facing lawsuits accusing it of both being too lax and over-zealous in handling sexual assault complaints.

A lawsuit filed last month by a suspended student claims he was too drunk to remember the night he allegedly assaulted a fellow classmate. In fact, the suit continues, since he was incapacitated by alcohol and therefore couldn’t legally consent, she sexually assaulted him.

The female student claims the two were making out, “and that was okay and what I expected and fine.” But then he asked if he could give her oral sex, to which she responded “no you are not doing that,” but he ignored her wishes until she pushed him off of her.

The lawsuit claims the hearing process was unfair and biased against male students.

Getson, the school’s Title IX Coordinator, said she couldn’t comment on specific cases or the lawsuit but said in general her office strives for fairness.

“The most important thing for us is having fair and impartial processes and following them,” she said.

In March, another former student sued Miami in state court claiming the school was negligent for not expelling a student who she claims assaulted her in 2011. A criminal complaint against her alleged attacker claims he escorted her back to his apartment when she was drunk and had sex with her “in a blacked out state.”

He was criminally charged, and expelled from school. And it was discovered that the university had investigated him before for allegedly secretly videotaping sexual encounters between himself and female students — in possible violation of the university’s voyeurism rules — and could’ve been kicked out of school then.

“Miami University was on notice that this individual posed a threat to people of the campus community,” said Michael Hill, the plaintiff’s attorney in the case. “They failed to take appropriate measures to remove him and protect the safety of the students.”

After a criminal investigation by Oxford police, the Butler County Prosecutor’s Office dropped the charges against the alleged assailant.

“The case was not prosecutable,” Butler County Prosecutor Michael Gmoser said.

State budgets $2M, seeks solutions

The state budget signed in June included $2 million earmarked for the Ohio Department of Higher Education — formerly called the Board of Regents — to address campus sexual assaults. Agency officials say recommendations on how best to allocate the funds is expected in weeks.

Ohio State University Title IX coordinator Kellie Brennan sits on the state advisory panel and said while Ohio universities need discretion in how to handle cases, possible uses of the funds could be creating model training programs for Title IX staff, model hearing processes and model awareness campaigns.

Kiss agreed that more training is needed.

“I think the law as it’s written is really made to make sure the process is prompt, fair and equitable,“ she said. “A lot of the challenges I see (is when) the folks that are hearing cases are not trained. And it’s so important that there be proper training.”

“These are serious cases and people’s lives are at stake.”

Staff Writer Mark Gokavi contributed to this report.