Federal Court Condemns Bias in Campus Sexual Misconduct Proceeding


A federal district court in Florida recently ruled that a student’s lawsuit against Embry-Riddle Aeronautical University (ERAU) could proceed to trial, citing evidence that the university acted in a biased manner when addressing a claim of sexual assault against a male ERAU student.

Like many allegations of campus sexual misconduct, this case involved two students, both of whom had been drinking — one male, one female – and then had sex after a party. Both students said they were too drunk to consent and filed complaints against each other with the university’s Title IX office, which investigates claims of sexual misconduct. However, the university investigated the female student’s claim – and expelled the male student – while largely ignoring the male student’s claim.

The male student brought suit alleging he had been treated unfairly. The university tried to argue that the two students’ cases were different because the male student had admitted to sexual misconduct, citing text messages in which the student expressed remorse.

The court, however, held that “an expression of remorse” is “a far cry from an admission of guilt,” and rejected the university’s argument.

To most people, this may seem like common sense: everyone has apologized (or resented a non-apology apology) in a situation where one person feels wronged, and the other person is sorry about that but doesn’t admit doing the wrong. In the realm of campus sexual misconduct proceedings, however, this is a very important holding, because many students find themselves in serious trouble when they apologize to someone after a sexual encounter goes awry. Often, the student is just trying to apologize for the fact that the other person is upset or feels badly – but the school will often use that apology as evidence of the person’s “guilt.” This very human response – to seek connection through compassion where someone’s feelings have been hurt – should not automatically count as evidence that an individual who apologizes has done wrong.

The court’s decision doesn’t mean it’s suddenly safe to apologize (sadly, it’s not) without a campus administrator taking it as an admission of guilt. Nevertheless, it is significant that a court has finally recognized that expressing concern that someone feels badly is very different from admitting to sexual misconduct.

The court also came down hard on the university for using biased assumptions about males and females when deciding the case – in particular, for assuming that because the male student was sufficiently aroused to engage in intercourse, he could not have been the victim of sexual misconduct.

Unfortunately, this type of bias is all too common in campus sexual misconduct proceedings. These proceedings often lack important procedural safeguards designed to minimize the chances that a process will be affected by bias. And while the Department of Education enacted regulations in 2020 that require procedural safeguards under certain circumstances, throughout the education industry, schools are unfortunately doing almost everything in their power to get around those regulations whenever possible. And the 2020 regulations are now under intense scrutiny by the new administration.

All of this creates tremendous uncertainty, which throws the burden back on the courts to curb the excesses of American universities’ ongoing attempts to manage students’ private sex lives.

This is why it is critically important that students facing allegations of sexual misconduct on campus connect with an attorney who knows this area of the law and can help ensure they get a fair process – or fight back if they don’t. At Allen Harris, we represent students both in campus sexual misconduct proceedings and in lawsuits against universities that violate their rights in those proceedings. If this is happening to you, contact us today.