A former Colorado State athlete who was suspended for sexual assault last fall is now suing the United States government for gender discrimination, while alleging that the Department of Education’s sexual assault guidance violates federal laws, therefore suggesting that every campus sex assault case decided under that guidance could be overturned.
According to the lawsuit, Grant Neal, a sophomore at Colorado State University-Pueblo (CSU-Pueblo) who played football and wrestled at the school, had consensual sexual intercourse with a female classmate, who is not named in the lawsuit, last October. The next day, a peer of that woman, who is also not named, reported to the school that Neal had raped the woman.
In December, after investigating, the school found that Neal was more than likely responsible for sexual misconduct—the standard that the federal Department of Education tells schools to use—and suspended him for as long as the alleged victim remained at the school. The woman said he never raped her, according to the lawsuit.
After the ruling, Neal apparently lost athletic scholarships and has found that no other school will admit him. His suspension had critics, and a petition for the university to overturn it has nearly 2,000 supporters.
The lawsuit names the university and several school officials, including its president, as defendants, and notably also includes the U.S., the Department of Education and the Department of Education’s Office for Civil Rights (OCR), as well as Secretary of Education John King Jr. and Assistant Secretary for Civil Rights Catherine Lhamon—a first in such cases by male students accused of sexual assault, according to legal experts.
The basis for the lawsuit is the OCR’s controversial “Dear Colleague” letter, which it issued to colleges and universities in 2011. The letter stated that sexual violence at schools falls under Title IX, the federal law that prohibits sex discrimination in education settings. The OCR offered guidance for how schools should handle sexual assault and violence cases. It also said those that mishandle them would be in violation of Title IX and could lose federal funding.
Advocates for male respondents in campus sexual assault cases say the 2011 guidance led to an overcorrection on the issue in a way that discriminates against young men, is inherently anti-male and denies them due process. Neal’s lawsuit alleges that the OCR’s guidance violates the law.
“We believe the ‘Dear Colleague’ letter issued by the U.S. Department of Education is illegal and unconstitutional,” Andrew Miltenberg, who represents Neal and has become a go-to lawyer for male respondents in sexual assault cases, tells Newsweek via email. “By essentially encouraging male gender bias, the Administration’s directive has violated Title IX and created a new class of victims on campus—accused male students who have had their right to due process stripped away.”
Male students accused of sexual assault are increasingly suing their schools, and especially since 2013, more of them are claiming Title IX discrimination—the same violation that female sexual assault complainants have made, alleging that schools mishandled their claims in a way that goes against their Title IX rights. Most of these so-called reverse-Title IX cases have been unsuccessful: In March, a judge dismissed a high-profile case against Columbia University by Paul Nungesser, the student who was the subject of classmate Emma Sulkowicz’s “mattress” art project and protest. Nungesser has until April 25 to file an updated complaint. Miltenberg represents him too and has said he plans to file.
However, a handful of these cases have recently survived motions to dismiss, including ones against Washington and Lee University, Brown University and Brandeis University.
Neal is suing for violations of Title IX and due process and breach of contract. He also alleges that the “Dear Colleague” letter violates the federal Administrative Procedure Act, which mandates a notice and review process for when the government issues a new rule. The lawsuit claims that the OCR issued “binding law” under the guise of “guidance” without following the APA procedures.
Such a violation, the lawsuit alleges, means the “Dear Colleague” letter and all disciplinary decisions made under it are “unconstitutional, arbitrary and void.” A ruling in favor of that claim might open any campus sexual assault decision a school made since 2011 to a challenge.
Hans Bader is a senior attorney at the Competitive Enterprise Institute, a nonprofit public policy organization, who practices education law and previously worked as an attorney at the OCR. He points out that a footnote to the “Dear Colleague” letter says it does not add to existing law, and yet “it requires colleges to follow those letters to the T,” he asserts.
“Requiring schools to apply that as gospel when they essentially made it up out of nothing—that’s a plain violation of the APA because you have an entirely new legal obligation without notice and comment, without even the pretext of any real basis,” he says.
Several advocates for male respondents have recently vowed to take on the OCR. Last week, Families Advocating for Campus Equality, a due process advocacy organization led by mothers of male students accused of sexual misconduct, filed testimony with a Senate subcommittee opposing a federal proposal to increase the OCR’s funding by about 30 percent. “Approval of such a dramatic increase in OCR’s budget will only reward OCR for its much-criticized overreach,” the organization said.
And earlier this month, the Foundation for Individual Rights in Education, a nonprofit that advocates for free speech and due process on campus, called for students to help challenge the OCR for the same “abuse of power” that the Neal lawsuit alleges. A FIRE spokesman says the Neal lawsuit is unrelated to the organization’s effort.
“When an administrative agency wants to promulgate a regulation that will force people to change their behavior in some way,” says Justin Dillon, an attorney who is working with FIRE on its effort, “the agency, No. 1, has to put out a notice that it’s thinking of taking this action, and No. 2, allow people to comment on this action, whether they’re for or against it.”
Those procedures, Dillon says, ensure that only federal employees with accountability to the voting public are the ones setting rules. “Agencies are not Congress. Agencies are unelected people,” he says. “The staff of the agency are just garden-variety federal employees with absolutely no democratic accountability. The idea is, you don’t want to have people who are not accountable to the voters basically making laws” without those review procedures.
Should a judge determine that the “Dear Colleague” letter is null and void, Dillon says, some “might argue that they have a right to reopen a case” under pre-2011 procedures—unless the ruling that vacates the letter only applies moving forward.
Dillon, who is not involved in Neal’s case, says he and FIRE are “very close to filing” their own lawsuit that makes a similar argument.
The OCR has been a defendant in at least one other lawsuit. In 2005, plaintiffs sued the OCR, alleging its investigation into a possible Title IX violation involving male and female high school hockey teams was flawed. A federal court judge dismissed the case in 2007.
A CSU-Pueblo spokeswoman declined to comment on pending litigation. A Department of Education spokesman declined to comment for the same reason.
As of April 13, the OCR is investigating 175 colleges for their handling of sexual violence cases.
“We’ve seen just a cataclysmic change around the country in terms of attention to the issue; responsiveness to it; and training, preparation for our students so that we can see safer campuses,” Lhamon, the civil rights assistant secretary, told Newsweek last year. She said the OCR had not yet rescinded funding from a school for mishandling a sexual violence claim but added, “I would absolutely be prepared to do it.”