A Title IX lawyer explains how male students sue their schools when accused of sexual assault

‘They claim they’re victims of discrimination and the university’s process violates Title IX’

Hide Images

Male students accused of sexual assault are now taking their schools to court in high-profile and expensive lawsuits, according to a top Title IX lawyer.

Daniela Nanau, an attorney who often works on college cases, gave us the inside story on how students alleged to have committed sexual assault are suing their universities, claiming their cases were mishandled because they’re men.

These lawsuits, she explained, tend to be put forward by male students from wealthy families (who can pay the hundreds of thousands needed for these cases). They allege anti-male bias in their college tribunals – and, according to Nanau, the majority of cases are unsuccessful. We found out why.

Posed by model

Tell me about this trend and how it works.

The trend that has surfaced in recent years is that parties who are alleged to have engaged in sexual harassment – which can be threats all the way up to sexual assault – are contesting the disciplinary process. They’re saying the disciplinary process they’ve had is plagued by an anti-male bias. They claim they’re victims of discrimination and the university’s process violates Title IX – the federal law that prohibits gender discrimination.

Schools have tried to contest these claims, and in some cases students who are alleged to have engaged in sexual harassment were successful. But in the vast majority of cases that I have seen reported, the students are not successful in making out a Title IX violation. And that’s because I think that the standard is pretty high. The Second Circuit, which is the highest federal court in New York before the Supreme Court, has laid out a test that students have to meet in order to show that the disciplinary process they were subjected to was marred by illegal gender discrimination.

So there are two ways of attacking a university disciplinary proceeding on the grounds of gender bias. One way is if the plaintiff or the alleged harasser was innocent and wrongly found to have committed an offense – which is tough to prove. In the second way the plaintiff will say: “Regardless of whether or not I’m innocent or guilty, the severity of the penalty that has been imposed on me and they way the school came to the conclusion that I was guilty is very severe and very different from what other students have received regarding comparable misconduct.”

Is there a case you have in mind?

One example is John Doe vs Columbia University in 2015. The plaintiff accused of sexual assault claimed he was treated more harshly and unfairly on the basis of his sex. And he says because of this anti-male bias, he couldn’t get a fair process. The problem with his claim and why it was dismissed is that he was just using conclusory allegations claiming the process was rigged against him, so he was found guilty of sexual assault, rather than showing or describing real evidence. [A district judge threw out the claim before trial, although he has appealed].

The court documents show he just says conclusions that there’s an anti-male bias at Columbia, but doesn’t describe how it functions – who’s responsible for it? Who perpetuates it? You have to do that in a complaint, show some kind of evidence. Judges are aware some people are trying to use the federal court process to clear their names, and they’re clear in their decisions that it’s not really worth it. Don’t try it, because the standards are high – you need to show real discriminatory treatment.

Is there another case that really emphasizes this trend for you?

The Paul Nungesser case at Columbia. That’s a case with a very well-publicized situation. And the plaintiff in that case who was accused of sexual assault tried to use that publicity to somehow demonstrate anti-male bias at Columbia. The judge said he had nothing. Especially he, the alleged harasser, went to the media and tried to use them to tell his side of the story. He couldn’t then say it was everyone else’s fault.

So I think it’s an interesting case of where the court demonstrates how you really have to have something more than a feeling of anti-male bias to bring one of these cases. Just because the college process breached the student conduct code, for instance, that’s not enough. You really have to demonstrate that there was something flawed with the process. You can’t claim bias when you’re involved in the circus. It wasn’t that he was a passive party, he was an active participant in the process that he then claimed was biased against him because of his gender. [Nungesser’s case was also thrown out of court.]

You mentioned that the students who tend to bring these cases tend to be wealthy and privileged.

I definitely think that is true. It’s difficult to find attorneys who will find cases not paid by the hour. And these cases tend to be people of privilege or those with families who can afford to fund the litigation. That doesn’t necessarily determine the outcome of those cases but it does limit the avenue of redress. Federal litigation is very costly – just going to trial alone can be a quarter of a million dollars. Getting there costs also hundreds of thousands. These are very evidence-intense cases, and most of the evidence is based on testimonials – what people say on the record rather than what’s in phones or emails or other documents. So it’s expensive.

There are still firms bringing these cases because the clients come in and they have the ability to pay an hourly retainer and as long as there is some evidence, lawyers will file these lawsuits. But the more prudent attorney and student looking to clear his name would only bring a case if they really had something. Otherwise it’s a bit of a luxury. If you get your claim dismissed from federal court and a judge saying: “You’ve got nothing,” I don’t think that gets you any closer to clearing your name. And those marks on your transcript are there for ever.

Not wanting to sound too cynical, but it seems that these students are being quite opportunistic and jumping on the stereotype that Title IX lawyers aren’t doing their jobs properly.

In the cases that are coming out now, the courts are acknowledging that. For example, one case that came out in March 2015 in New York, Peter Yu vs Vassar College. The court said: “There has been much debate in recent times about the most effective method for addressing the formidable problem of sexual assault on college campuses. The court’s role is not to advocate for best practices or policies or to retry disciplinary proceedings. Here the full question before the court is whether Vassar College expelled Peter Yu for sexual assaulting a fellow student, if it discriminated against him based on gender and violation of Title IX.” So the court is saying their ability to regulate what goes on in schools is fairly limited. And it’s really those outlier cases where the process is so one-sided that a student is going to find any luck. [Yu’s case was dismissed by a judge.]

If someone has been found to be responsible for sexual misconduct and they’re just trying to use the federal process to clear their name but the evidence isn’t there, then yes – I think we should look critically at those folks. They’re trying to use the court system as a second bite at the apple. And that’s not what Title IX is for. So I do take a cynical eye.

A lot of right wing media is dominated by the idea that Title IX prosecutors are part of a grand liberal conspiracy out to get men – what’s your take?

It’s a myth. These colleges and universities – even if they’re not-for-profit institutions – their job is to provide educational services for a fee. And they have a contractual relationship with every single student who comes onto campus. I really think that those two basic components create the circumstances that mean if there is a liberal bias on a university, it will be among the faculty teaching classes – that doesn’t mean the school is informed by people who try to realize their liberal politics through the administration. That’s because they have a business to run – educating folks who pay fees in exchange for degrees. And so the school is obliged to treat each student equally, because of their contractual relationship – the laws demand that. If there is a liberal bias in a school, it would not bleed into the administration to view their contractual relationships with men and women differently. I think idea is incredibly far-fetched.

Conversation edited for length and clarity.