A Michigan State undergrad accused of sexual assault. A Cal grad student who says he was denied due process. The Maryland baseball players accused of rape.
And as of Friday, a Baylor professor who says he was falsely accused of raping a student.
They’re all suing to clear their names—and, in some cases, get monetary damages—and turn back what had been a wave of Title IX complaints that swept U.S. college campuses during the peak of the #MeToo and “believe all women” movements.
On Friday, John Doe, a pseudonym for an assistant professor in Baylor’s Department of Economics, filed a 35-page federal lawsuit in Waco, Texas, that alleges he engaged in a consensual relationship with a female student who, in July 2018, accused him of rape, sexual exploitation, intimate-partner violence, and more.
A campus Title IX investigation last October found in the student’s favor, concluding that Doe was “responsible” for those three allegations, but cleared him of others.
Doe’s complaint claims the Baylor Title IX office’s findings were “motivated by gender bias” and that the school failed to conduct a fair and impartial investigation into the matter. The filing alleges female professors at the Baptist school were allowed to date male students without consequences. (A university spokesperson said Monday that policy prohibits romantic or sexual relationships between undergraduate students and faculty members.)
Prior to the Doe case, an independent report by Philadelphia law firm Pepper Hamilton found in May 2017 that Baylor exhibited a “fundamental failure” to obey Title IX laws or to protect female students, following a string of allegations involving the school’s athletes against females on campus. Investigators said at the time that few students accused of sexual violence were ever punished and, on other occasions, administrators engaged in retaliation or victim-blaming. Title IX is the federal civil-rights law that prohibits discrimination on the basis of sex.
In the aftermath of that report, Doe claims, Baylor began operating with an “anti-male” bias.
“Baylor has been an ignominious player in the ongoing national discussion of how colleges and universities handle allegations of sexual misconduct made by female students,” the complaint states. “As part of its quest for redemption, Baylor enacted a university-wide culture of anti-male bias and intimidation inconsistent with its stated Christian principles that ensnared [Doe], besmirched his character, and destroyed his career.”
Doe is seeking unspecified damages to be determined at trial, an injunction ordering Baylor to vacate its disciplinary findings against him, and an expungement of all records relating to the case.
In a statement to The Daily Beast, Baylor spokesman said there were several “inaccurate claims” in Doe’s lawsuit but confirmed the Title IX office found Doe “responsible for, among other things, violating Baylor’s policy prohibiting non-consensual sexual contact with a student.” Doe resigned from his position before the Title IX process was completed, the spokesperson said.
However, the Baylor complaint is just the tip of the iceberg.
A lawsuit similar to Baylor’s Doe case was filed in December 2018 by a student who was suspended by Michigan State University for two years after he was accused of sexual assault, according to the Detroit Free Press.
The suit was amended last month to seek class-action status, becoming the first in the nation to do so on the issue. If successful, it could overturn punishments for dozens of similarly accused students at Michigan State—and could lead to widespread class actions against other public universities.
Much like the Baylor case, the John Doe suing Michigan State claims the university used Title IX as a “weapon of law” in order to “distract attention from its own misdeeds” in the aftermath of the very public Larry Nassar scandal, in which the former USA Gymnastics team doctor and MSU physician was unmasked as a serial sexual abuser who victimized hundreds of women and girls.
The Doe case against Michigan State claims the university failed to offer the accused student due process by prohibiting him from being present during a live hearing in which he could question his accuser directly.
A student at Cal State Fullerton filed a similar class action on July 16 against the California State University system, seeking to “clear the records of those who’ve been wrongfully punished,” said attorney Mark Hathaway, who filed the case.
And earlier this month, a University of California graduate student filed a class-action lawsuit in Alameda County against the entire 10-campus system, claiming that campus policies on sexual misconduct are unfair and denied him due process, the Los Angeles Times first reported.
Hathaway is behind both California suits. He told The Daily Beast on Monday that dozens of students “did not get a fair hearing” in Title IX cases and were expelled or suspended without due process.
Hathaway estimated that as many as 500 plaintiffs could join the UC class-action and hundreds more could join in the Cal State case.
“Clearly there are problems between men and women in the workplace and on campuses that need to be addressed,” said Hathaway, “but there’s been a presumption of guilt that shouldn’t exist in our society.”
“I don’t see [the barrage of lawsuits] as a backlash to the #MeToo movement,” Hathaway said. “It’s a backlash to the if-you’re-accused-you’re-guilty movement.”
“Saying ‘believe all the women’ is like saying ‘believe all the men,’” he added. “What does that leave you with?”
UC and Cal State officials have said they believe their Title IX processes are “fair, respectful to all parties, and comply with state and federal law.”
Brett Sokolow, the president of the Association of Title IX Administrators, told the Times that more than 300 students have filed lawsuits contesting their Title IX punishments. He estimated that as many as 20,000 students at 4,500 different U.S. colleges and universities may have been disciplined for sexual misconduct.
“If one case succeeds,” Sokolow told the newspaper, “it opens the floodgates for others.”
K.C. Johnson, a professor at Brooklyn College and expert on due process in college sexual-assault cases, told The Baltimore Sun that due-process lawsuits against colleges and universities have increased from about one per year from the mid-1990s to 2011 to about one a week over the past two years.
In addition to the boom in class-action and due-process claims against universities, the Sun reported last month that defamation suits are being increasingly deployed by men in the wake of the #MeToo era to clear their names and to get their records expunged—or to pressure an accuser to drop their complaints.
The tactic was used by three former baseball players from the University of Maryland who sued a woman after she accused them of raping her in 2017. The men denied the allegations, claiming instead that the woman engaged in consensual sex.
Then they sued her for defamation.
“Over the last three and half years, there’s been far more legal action brought by men charged by the institution with a sexual-assault violation,” Saunie Schuster, who co-founded the Association of Title IX Administrators, told the Sun. “The trend was for them to file an action against the institution for due process, but along the way, we started seeing them not just going to file action against the institution, but also civil actions against the victims.”
Michelle Simpson Tuegel, who represented an accused student in a due-process Title IX lawsuit against Texas A&M in 2017, and has since represented gymnast survivors in the Nassar cases, pointed to the “chilling effect” that defamation lawsuits can have on survivors.
“It seems to me that it’s just another way to bully victims into being silent,” Simpson Tuegel said.
“There has to be some due process, and I think people have a right to have an attorney and to know the accusations against them,” she added. “But in these cases, it does more harm than good for both sides, and it very rarely is successful.”
Seattle attorney Bruce Johnson says lawsuits like the one at Baylor, which he described as part of the “surge in retaliatory lawsuits,” are still often intended “to frighten the complainant.”
“It makes it very difficult for women to be able to tell their story,” Johnson told The Daily Beast. “I routinely receive phone calls from women who are worried about this precise problem: retaliatory lawsuits.”
“For many victims, it’s a recurring nightmare,” he said.
Ohio lawyer Eric Rosenberg told The Daily Beast on Monday that he has represented more than 20 students in lawsuits in which accused have sought legal recourse over what he called false allegations of sexual misconduct, including a student who filed suit against Purdue University in June.
“If you’re found responsible for sexual misconduct at a university in America, your future is arguably over,” said Rosenberg. “The lawsuit is the only way that these students are able to move on professionally and academically.”
“I have zero tolerance for sexual assault, I really do. But what’s happening in many of these proceedings is, you don’t get the evidence. You don’t get to hear or see the materials that are being used to reach a decision,” he said. “Students leave disciplinary proceedings often feeling that there’s a complete lack of transparency.”
Schools enforced Title IX with less rigor before 2011 because of the high standard of proof that was required in such proceedings. But during the Obama administration, federal guidance changed to a “preponderance of the evidence” standard for Title IX cases, meaning the accuser had only to show that the incident was more likely than not to have occurred.
Critics of the Obama-era federal Title IX guidance, including Rosenberg, say those guidelines made it harder for students to defend themselves—and are responsible for the increase in litigation.
Education Secretary Betsy DeVos rescinded more than 20 Obama-era guidelines last year and in February proposed a set of controversial regulations that bolster the rights of the accused. (The ACLU at the time said the regulations would “make schools less safe for survivors of sexual assault and harassment.”)
“These lawsuits are not a response to the #MeToo movement, they’re a response to the fact that the students’ professional and academic lives have been terminated,” said Rosenberg. “Their primary goal is to have their academic record expunged so that they can move on.”
“If they can’t get that, they can’t move on,” Rosenberg added.