A Macalester College sophomore who was arrested but not charged in an alleged sexual assault last fall is suing Macalester and the U.S. Department of Education over the college’s Title IX investigation into the incident.
In a complaint filed in federal court on Tuesday, Alec Scott Jackson seeks an injunction to prevent Macalester and the DOE from taking further action in pending disciplinary proceedings until “the process is reformed to adequately protect the constitutional and common law rights of the accused.”
Jackson — who has diagnoses of bipolar disorder, depression and Asperger’s syndrome — also asserts a claim under the Americans with Disabilities Act. He claims the school failed to accommodate his known disabilities in the course of the proceedings.
“It’s not a money-damages lawsuit. We’re purely seeking to obtain due process reforms,” said Martin A. Carlson, the Minneapolis solo practitioner who is representing Jackson.
According to the suit, Macalester revised its disciplinary procedures for sexual discrimination claims after the DOE, in 2011, issued a nationwide directive requiring colleges and universities to “adopt and publish grievance procedures for providing prompt and equitable resolution of student and employee sex-discrimination complaints.”
As part of that “Dear Colleague” letter, the suit says, the DOE required that institutions investigating such complaints apply a preponderance of evidence standards, rather than a more stringent clear and convincing standard. Institutions that fail to comply, the DOE warned, could be subject to legal action and the loss of federal funding.
According to the suit, that shot across the bow led Macalester and many other institutions to scuttle basic due process protections, which created “an environment in which it is highly likely that students such as Mr. Jackson may be expelled [and] branded as rapists … even though they are actually innocent of any wrongdoing.”
The suit says Macalester’s policies flout due process by depriving students of the right to confront accusers, cross-examine witnesses or even review complete investigative files. Additionally, the suit says, the school’s procedures don’t allow for meaningful participation of counsel (who are relegated to the role of observer/advisers), lack clear evidentiary standards, and are adjudicated by officials “who have not direct contact with the accuser, the accused, or any other witnesses.”
Kathryn Nash of Gray Plant Mooty — the employment law attorney who is representing Macalester — said that she couldn’t discuss the specific allegations in the complaint because of privacy concerns but provided a written statement on behalf the school.
“Macalester College takes its obligations under Title IX and the Violence against Women Reauthorization Act very seriously. We believe that our policies and procedures provide due process to respondents accused of sexual misconduct,” the statement reads. “We have faith in our process and the professionals involved in administering it. We are disappointed that the accused student has opted to legally challenge the process without having participated in it.”
For his part, Carlson said he is not without some sympathy for the college’s position.
“I understand that in many respects colleges are between a rock and a hard place. And there’s no dispute that schools like Macalester, when confronted by situations like this, have a legitimate interest of getting to the bottom of it,” he said. “If there was a simple solution, somebody would have thought of it a long time ago. But I also think it’s possible to strike a reasonable balance and I don’t think that’s the point we’re at.”
According to the complaint, Jackson was arrested in his apartment by St. Paul police shortly before midnight on Oct. 7 on suspicion of sexual assault. He was released from custody the next day “without explanation or charge.”
With three hours, however, Macalester’s Title IX officer, Karla Rutten, informed Jackson that the school was initiating a review of the incident. A few days later, Jackson was ordered to have no contact with any members of the Macalester community other than faculty members and certain staff.
Those restrictions were dropped about a month later after Jackson’s accuser “chose not to participate” in the disciplinary proceedings. In December, Jackson learned that that the investigation was being reopened at the request of the accuser.
Prior to an initial meeting with Macalester officials to discuss his client’s case, Carlson said he said knew next to nothing about Title IX or Macalester’s disciplinary protocols.
“The further we got into the conversation, the more due process-related red flags started going up for me. By the end of the meeting I was quite alarmed,” he said.
While the relevant case law is scant, Carlson said he doubts that will remain the case for long because of a “sea change” in how aggressively colleges are enforcing Title IX rules.
“I really think this is just the leading edge of what may well be a wave of national litigation,” Carlson said. “There’s an emerging body of scholarly discussion and ideas for potential action are being circulated. This is one iteration of that larger discussion.”
While Carlson said he suspects the lawsuit will most likely resolved via dueling motion practice, he opined that it’s a good candidate for mediation.
“We’ll see whether we get that,” he said. “Litigation is usually destructive but we’re trying to be constructive here, even though it may not look that way at first blush.”
As a 1994 graduate of Macalester, Martin said it was, personally, difficult to bring the action against his alma matter.
“I absolutely love the school,” he said. “Hopefully, in the long run, it will be better off.”