By: Darrick O’Dell
College is a time of exploration and discovery in many young adults’ lives. Vigorous study of Physics and Sociology often salted with alcohol-fueled socializing and awkward sexual encounters. When you populate a community with young adults exploring their sexuality in a fashion often exacerbated by intoxicants, you find a hotbed of risk and uncertainty. This uncertainty is not isolated but applied to students, faculty and administrators.
Within the State of Tennessee are over eighty colleges, universities and trade schools. What are colleges to do when attempting to comply with Federal guidelines under Title IX? What standard of proof should apply to internal investigations into alleged sexual misconduct? What should be done when complaints are made?
We see these issues arise in news reports across the country. A recent case brought against the University of Cincinnati illustrates the complex nature of the world students and educators operate in. If two students have a sexual encounter which seems consensual but for their intoxication, who, if anyone, should face consequences? Jane Roe, female plaintiff, has filed suit against the University of Cincinnati, et al. in the 6th US District Court, for the Southern District of Ohio, (TN Federal Courts are within the jurisdiction of the 6th Circuit), docket number 1:18-cv-312. Jane has brought suit claiming a violation of her due process rights, violation of U.S.C. § 1983 and violation of Title IX.
An unusual fact pattern is presented here as it stems from a male complaining his intoxication made him unable to consent to sexual activity with an intoxicated female.
Jane Roe was suspended by the University of Cincinnati for allegedly engaging in sexual conduct with another student while that student was intoxicated and, as a result, unable to provide consent. Jane’s lawsuit alleges that on September 30, 2017 Jane Roe and John Doe were drinking at a party and left returning to John Doe’s apartment. What appeared to a ubiquitous and consensual sexual interaction, but for intoxication, occurred. Jane then fell asleep in John’s bed and went home in the morning. On October 2, 2017 John submitted a report to the University’s Title IX office alleging Jane engaged in sexual activity with him while he was intoxicated and thus unable to provide consent. John did not report the incident to police.
As alleged, the University’s Title IX office conducted an investigation and confirmed sexual contact had occurred and thus the analysis moved on to whether the sexual activity was consensual or nonconsensual. Jane Doe defended the claim by asserting she was also intoxicated. The Title IX office found Jane guilty of having a sexual encounter with a person unable to give consent due to intoxication. The claim that Jane herself was intoxicated did not appear to factor into the University’s analysis. Jane’s appeal was denied.
Jane now brings suit against the University of Cincinnati alleging, among other things, that John only filed the Title IX complaint against her as retaliation, because Jane herself had filed a similar Title IX complaint against a friend of John’s alleging intoxication negated her ability to consent. Was John Doe a victim of Jane Roe? Was John not a victim, but merely retaliating against Jane for a similar claim Jane made against his friend? An interesting question is; did John complain to the Title IX office, first, out of fear Jane would make the same claim against him, as she had done previously to his friend?
Reviewing these scenarios around the country, in situations where both parties claim to be intoxicated, there appears to be an advantage in being the first to make a complaint. A race to the Title IX office. Perhaps defensive minded students will find it prudent, as a matter of practice, to file Title IX complaints whenever they are involved in a sexual encounter while intoxicated. Whatever happened at the University of Cincinnati, educational institutions should focus development of their procedures to avoid providing unjustified advantages to any particular complainant.
Students, professors and administrators find themselves in uncharted waters. In September of 2017, Betsy DeVos, the Secretary of Education provided guidance setting aside the mandate under the Obama administration that institutions receiving federal financial aid must develop procedures instituting a “preponderance of the evidence” standard in adjudicating allegations of sexual harassment or violence. Leading up to the DeVos letter, colleges were discouraged from allowing cross-examination of accusing students among other items running afoul common understandings of due process.
Citing due process concerns DeVos said “One rape is one too many, one assault is one too many, one aggressive act of harassment is one too many, one person denied due process is one too many,” while speaking at George Mason University’s Arlington, Virginia, campus.
Prior to the Obama era directives, colleges were allowed discretion in crafting their disciplinary procedures, taking into consideration their own concerns, unique circumstances, and level of concern for the rights of the accused and accuser. In the months following Department of Education’s actions, colleges have responded differently. Some have expressed their intention to continue with policies developed in line with the Obama directives, and others have taken steps to incorporate more protections in line with due process.
While Tennessee colleges determine how to move forward, they do so in an environment which has seen exponential growth in the filing of complaints. The number of Title IX complaints reported at the University of Tennessee more than doubled from 2015 to 2016, and has risen more than 100 times what was reported in 2013, according to a report from the State of Tennessee Comptroller of the Treasury. The report shows an increase in Title IX complaints under the Tennessee Board of Regents, which oversees community colleges and technical schools in addition to six state universities. These trends are not limited to public institutions, as Title IX applies to any college or university where Federal student aid dollars are spent.
Claims are on the rise. Each institution is able craft its’ policies as it deems appropriate. This leaves uncertainty for those drafting the policies, those applying them and those they are applied to.
Administrators need to carefully evaluate the legal implications with thoughtfulness to intended and unintended consequences of policies they put in place. Faculty and students who are the targets of complaints and investigations, as well as complainants interested in protecting their privacy, would be well served by consulting counsel while navigating these uncertain times. Call Darrick O’Dell, Partner, of Spicer Rudstrom, PLLC for more information.
Darrick O’Dell is an AV-rated litigation attorney in the Nashville office of Spicer Rudstrom, PLLC. His major practice areas are employment law, including traditional labor law, professional liability, products liability and construction litigation. He also specializes in professional liability cases.
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