Tennessee joins list of colleges facing sexual assault lawsuits

When six former female students filed a sweeping lawsuit against the University of Tennessee last week, they joined a growing list of high profile legal actions against colleges over how sexual assault allegations are handled, particularly those involving male athletes.

Last month, Florida State University settled a lawsuit for $950,000 brought by a former student who said she was raped by star quarterback and Heisman Trophy winner Jameis Winston in 2012, but was met with "deliberate indifference" by university officials after she came forward. Winston has denied the allegations.

In January, Baylor University entered into a confidential settlement with a female soccer player after she reported being sexually assaulted by former football defensive end Sam Ukwuachu. A jury found Ukwuachu guilty of the sexual assault in August 2015, months after a campus disciplinary review had cleared Ukwuachu.

COMPLETE COVERAGE: University of Tennessee sex assault lawsuit

There are ongoing lawsuits brought by female students against the University of Oregon and the University of Tulsa.

Male students complaining they were wrongly accused and disciplined are also filing suit, including two men at the University of Texas Austin.

The legal actions extend beyond civil suits. In August, a Nashville judge ruled that University of Tennessee Chattanooga had to reverse its expulsion of student wrestler Corey Mock. The school used a disciplinary hearing to review an allegation of sexual assault against him that "erroneously shifted the burden of proof onto Mr. Mock," the court ruled. Mock has denied the sexual assault allegations.

The lawsuits filed against universities are for violating Title IX, a federal law that bars sex discrimination in education, which includes sexual assaults.

Title IX experts attribute them to increased campus activism around sexual assaults, intense media coverage and stronger efforts by the federal government to both give guidance to universities, and to investigate complaints against them.

The federal Office of Civil Rights is currently investigating 165 complaints against universities over their handling of sexual violence, including complaints against Vanderbilt University, the University of Tennessee Knoxville and the University of Tennessee.

Sweeping sex assault suit filed against University of Tennessee

Most of the cases have settled before trial, said John Clune, the attorney who represents the former Florida State University woman in the case involving Winston.

"A lot of these cases have merit, but even in cases where the school thinks it has a shot at winning they settle because very few cases show a school doing a good job in responding to sexual assaults," Clune said. "Even if they win, they end up looking bad in the press."

In the University of Tennessee federal lawsuit, neither side has made any public comment about whether a settlement has yet been sought or offered. The complaint, however, does note attorneys for six women plaintiffs and lawyers for the university had entered a "tolling period" before the lawsuit was filed to waive any statute of limitations, which often signals parties have been negotiating.

If the case goes to trial, the six plaintiffs must overcome a high legal bar to win their case, said Nancy Hogshead-Makar, an attorney and chief executive officer for ChampionWomen, who has consulted on campus sexual assault cases.

"A student has to show that the school had actual knowledge — by that it has to be a person in power; it can't just be the teacher or coach — who knew something was going on but acted with deliberate indifference," she said.

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The "deliberate indifference” standard was established by a pair of Supreme Court cases in the 1990s. In Davis v. Monroe County Board of Education and Gebser v. Lago Vista Independent School District, the court ruled that schools receiving federal funding may have to pay damages to the student victims of sexual harassment or assault if the victims can show that the institution acted with “deliberate indifference to known acts of harassment in its programs or activities."

In 2004, a high profile lawsuit brought intense national attention. Two female students at Colorado University sued the school alleging they had been sexually assaulted by football recruits. An appeals court found that the university “had an official policy of showing high school football recruits a ‘good time’ on their visits to the CU campus,” that it “failed to provide adequate supervision and guidance to player-hosts chosen to show the recruits a ‘good time.' " The court found that “the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference."

The University of Colorado settled the case for $2.5 million in 2007.

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Most campus sexual assault lawsuits after that have focused more narrowly on a university's action — or inaction — after a reported sexual assault.

Other cases have accused university officials of “deliberate indifference” before a sexual assault took place, alleging officials were aware of a single offender who, for example, had a history of violent or sexual behavior who then sexually assaulted again.

Tennessee’s lawsuit is more similar to the Colorado case, in that its allegations are much broader, Clune said.

"What they did in the Tennessee case was took language saying there was a pattern and practice of sexual violence within the athletics department and that the indifference was part of the pattern," Clune said. "It's a much less common claim to bring, but potentially a strong case."

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New York attorney Andrew Miltenberg, who has brought at least a dozen lawsuits against colleges and universities by male students accused of sexual assault, said the growing number of legal actions point to a "frightening lack of consistency and uniformity from campus to campus and even within the same university," about how sexual assault allegations are handled.

"You need to look no further than the UT system," he said, noting the Nashville court decision that found UT Chattanooga used an unfair student discipline system with Mock in which he was required to prove that the sex was consensual, rather than have the university prove the allegations.

The UT lawsuit, on the other hand, alleges the same campuswide student discipline system is biased in favor of accused athletes and gives fewer rights to female students who bring forward claims of sexual assault.

"This is why maybe all of this is too serious and too significant to be handled by universities," he said. "There are serious allegations with serious consequences for victims who are victims of crimes and people who face false allegations. Universities have many intelligent people working for them, but few are equipped to handle such serious matters."

Reach Anita Wadhwani at 615-259-8092 and on Twitter @AnitaWadhwani.

A previous version of this story misspelled attorney Andrew Miltenberg's name. 

Sexual violence complaints in Tennessee

The federal Office for Civil Rights is currently conducting six separate investigations into how Tennessee campuses have handled reports of sexual violence. They include:

• Southwest Tennessee Community College — Investigation opened Feb. 12, 2016
• University of Tennessee Knoxville — Two investigations, opened June 29, 2015 and July 21, 2015
• University of Tennessee Chattanooga — Two investigations, opened Dec. 5, 2014 and April 3, 2015
• Vanderbilt University — One investigation opened March 12, 2014

Source: Office for Civil Rights