Can’t be forced to change dorms before findings are reached
A common practice in campus sexual misconduct proceedings is to treat accused students as if they were guilty from the start.
This can include making them change dorms, drop classes or even leave campus to keep them away from their accusers – all before the university has even reviewed the evidence against them, much less found them responsible.
Iowa State University refused to take this guilty-until-proven-innocent approach when Melissa Maher accused Patrick Whetstone of sexual assault five years ago.
Though it imposed a no-contact order between the parties, it refused Maher’s demand to move Whetstone to a dorm further from hers when they returned the next academic year, according to Inside Higher Ed.
Instead it offered Maher “at least two alternative housing arrangements,” both of which she declined, according to the court record. The investigation was still ongoing at the time.
The university did judge Whetstone responsible for sexual assault a month later – when it concluded its investigation and hearing process. Maher withdrew from ISU “shortly after.”
Does that refusal to judge first and ask questions later count as deliberate indifference? A trial court rejected Maher’s argument, and last week the 8th U.S. Circuit Court of Appeals upheld that ruling dismissing the lawsuit against ISU.
Maher waited more than two years after the housing meeting to sue ISU for Title IX discrimination. For the purpose of answering the Title IX question, the appeals court assumed that she had not exceeded the two-year statute of limitations.
The trial court was correct that Maher had not “demonstrated a genuine issue of material fact as to whether ISU engaged in severe, pervasive, and objectively offensive discrimination against Maher because of her sex,” the 8th Circuit ruled in a curt five pages.
Under the court’s own precedent, Maher had to show that ISU was “deliberately indifferent … to known acts of discrimination … which occurr[ed] under its control.”
Rather, all she argued was that she didn’t like the alternative housing options it offered her. By her own argument, the appeals court said, Maher acknowledged that ISU was not deliberately indifferent until “it admitted” Whetstone was guilty – once its investigation was complete.
The “converted housing den or a room at the Memorial Union Hotel” that ISU offered Maher – plus a potential “emergency” option that remains in dispute – were “reasonable” in the eyes of the court. There was also “no reason” for ISU to think Maher would have changed her mind after Whetstone was found guilty.
ISU acted appropriately “in light of the known circumstances” by respecting Whetstone’s procedural due process rights, according to the court. It could have exposed itself to “constitutional or statutory claims” had it imposed discipline on Whetstone – a forced room change – before concluding the proceeding.
This ruling, of course, does not excuse Whetstone’s conduct. The court says ISU expelled him several months later, in summer 2015, after an administrative judge concluded he had violated the school’s code of conduct. Inside Higher Ed says he also pleaded guilty to “third-degree sexual abuse” in the 2016 criminal trial and was sentenced to two years’ probation.
But universities are not granted license to treat all accused students as guilty simply because some will eventually be judged guilty.
Even the Title IX consultant S. Daniel Carter acknowledges this, telling Inside Higher Ed that the 8th Circuit ruling matches Supreme Court precedent.
Universities should focus on creating procedures that “minimize the impact on students reporting sexual assault,” he said, so that accusers aren’t in a position where their only option is to relocate, given the legal constraints on preemptively punishing accused students.
The 8th Circuit ruling is more evidence that the guilt-presuming incantation “Believe Survivors” does not sway judges.
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