The landmark anti-discrimination law that empowered many young women to report sexual violence in college has become a legal weapon for a growing number of men to fight back against schools that kicked them out for sexual misconduct.
The legal pushback from these men has emerged in response to a wave of campus activism in recent years and a shift in federal enforcement of Title IX, the law that led to more reports of sexual assault and major changes in how colleges resolve those complaints.
Title IX, which prohibits sex discrimination in federally funded schools, has become a rallying point for assault survivors who want colleges to pay more attention to the problem of sexual violence. But now more men are using the 1972 law to defend themselves. They often say that colleges are acting with gender bias against them.
Since 2011, more than 150 lawsuits have been filed against colleges and universities involving claims of due-process violations during the course of Title IX investigations and proceedings related to sex-assault allegations, according to a database kept by a group called Title IX For All. In the two decades before that year, the group found, only 15 such lawsuits were filed against universities.
For the young men who file the suits, the civil courts offer a last chance for justice and an opportunity to clear their names.
“One day all of your dreams are in front of you and you’re on a path and a trajectory for you to achieve those dreams — only then for it to be yanked from you, totally out of your control,” Grant Neal said.
Now 21, Neal was a sophomore football standout at Colorado State University at Pueblo when a night of sexual intimacy, and dueling views afterward about what happened, resulted in a multiyear suspension. He has sued the university and the Education Department, contending that his due-process rights were violated after the 2015 incident and that the school exhibited gender bias against him. The university declined to comment.
Some data suggest that suits such as Neal’s are getting results.
SAVE Services, a Maryland-based group that seeks to highlight what it calls “rape hoaxes” and protect the rights of the accused in sexual-assault cases, found in a survey that about 70 percent of these types of lawsuits filed against colleges from 1993 to 2015 ended in settlements or rulings that at least partially benefited the plaintiffs.
For survivors of sexual assault, the legal battles can amount to emotional torture, gashing open wounds that they had thought were healing after a perpetrator was suspended or expelled.
“It was blindsiding,” said a 26-year-old woman who reported that she was sexually assaulted in 2013 on the night before she graduated from a public university in New York. The Washington Post generally does not identify sexual-assault victims. The woman said that the perpetrator has been tried twice and expelled twice through the university’s adjudication process but is still fighting the findings in court.
“Throughout this process it’s been about his rights that are important, but I have to fight tooth and nail for my rights,” she said. His lawsuit, she said, is an attempt “over and over again to try and get a different result, but his actions will never change. He’s just trying to find some crazy loophole to get out of what he did instead of taking responsibility for it.”
Victim advocates say that the lawsuits are an attempt to circumvent a system designed to keep colleges safe. It is not uncommon for cases to end with settlements that expunge expulsions from a student’s academic record, which advocates say could allow a violent predator to transfer undetected and endanger another campus.
“Does that put other students at risk? Yes, very possibly,” said Laura Dunn, founder of SurvJustice, a group that advises sexual-assault survivors.
For universities, the lawsuits are the latest complicating factor in one of the most challenging issues on campuses. Most schools are focused on preventing assaults through education programs and events such as the annual Sexual Assault Awareness Month in April. Schools also have been forced to respond to guidance on Title IX issued during the Obama administration.
In April 2011, the Education Department told universities they should weigh sexual-violence cases using a standard of proof called “preponderance of the evidence.”
Common in civil law, this standard is less demanding than the “clear and convincing evidence” threshold that some schools had used in disciplinary proceedings and the “beyond a reasonable doubt” standard that would be required for conviction in a criminal court. The federal guidance on this point has been controversial.
“The new standard of proof, coupled with the media pressure, effectively creates a presumption in favor of the woman complainant,” Nancy Gertner, a former federal judge, who is now a Harvard law lecturer, wrote in the American Prospect in 2015. “If you find against her, you will see yourself on ‘60 Minutes’ or in an investigation [into federal civil rights] where your funding is at risk. If you find for her, no one is likely to complain.”
In recent years, the number of lawsuits filed against universities for due-process violations has increased dramatically. Andrew Miltenberg, a lawyer who has represented Neal and other male clients in such cases, said the federal guidance tilted the disciplinary process against the accused.
“It has almost created a new class of victims, and those victims are young men who essentially have been railroaded,” Miltenberg said.
But many plaintiffs are finding success in court with arguments that internal college investigations were flawed or biased.
“Now judges are digging deeper,” said Brett Sokolow, a lawyer who is president of the National Center for Higher Education Risk Management. “They are losing trust in the good faith that colleges had when addressing these situations. And that’s a very dangerous position for colleges.”
Miltenberg said a crucial juncture in the lawsuits comes when judges are asked to rule on university motions to dismiss the plaintiff’s complaint. Often judges side with colleges. But a growing number of suits, Miltenberg said, are surviving the dismissal motion. That means the cases move to the fact-finding phase known as discovery.
Anxious to avoid that phase, many universities then choose to settle out of court. Often, the terms of the settlement call for the administration to rehear the original sex-assault allegation, with a new focus on protecting the accused student’s due-process rights.
The agreements can award a modest sum of money, expunge the suspension or expulsion from a student’s record and offer immediate reinstatement.
“Getting over the hurdle of the motion to dismiss is a victory in itself,” Miltenberg said, noting that colleges then opt to settle “because they don’t want to get into discovery or open their books, so to speak.”
Justin Dillon, another lawyer who has represented male clients in actions against universities, said that recent court decisions have given renewed optimism to attorneys who work in the field. He said there is also hope that the Trump administration will usher in an enforcement environment less hostile toward the accused.
“People are fighting back,” Dillon said. “What they want is their reputation back. . . . And when they win, they think fighting back is not futile.”
For universities, the lawsuits are expensive to fight in court and can result in costly settlements. Last year, a University of Montana football player was awarded $245,000 after he was expelled for sexual misconduct in a case highlighted in Jon Krakauer's best-selling 2015 book "Missoula."
Joseph Storch, an associate counsel in the Albany office of the State University of New York system, said that parents now more than ever are threatening colleges with lawsuits for all types of disciplinary infractions involving their children, from noise violations to sexual-violence allegations.
“They say, ‘My son is going to be a member of Congress,’ or, ‘My daughter is going to be a United States senator,’ ” Storch said. “There’s a feeling that if my child gets this mark on their record, as it were, then they won’t be able to be a secretary of state. And it causes parents to go well beyond what parents in prior generations have done.”
Dunn, the survivors’ advocate, said lawyers for accused or punished students often send a “demand letter” informing a university of an intent to sue along with a draft of the complaint. The threat of litigation is sometimes enough to persuade universities to settle, she said.
Among plaintiffs, Neal is unusual: He is going public with his story. He said he has found the aftermath of the allegation, investigation and suspension “hard to cope with” as he seeks to clear his name. “Basically, every day is a struggle to continue to go on and go forward,” he said.
But Neal said he is resolved to continue. “I’m willing to fight to the end and do whatever it takes to seek justice,” he said. “I have nothing to hide. I have no shame.”