Miltenberg: “#HeToo: How the Campus Accused Fight Back in Court and Often Win,” Real Clear Investigations

Two powerful currents regarding sexual misconduct are clashing on campus. One is an intensified effort to prosecute the mostly male students accused of such misconduct – sustained by an Obama administration-inspired crackdown and the more recent #MeToo movement … The counter-current is the pushback from accused students, who are hiring lawyers to argue their clients were caught up in murky sexual situations but found guilty in what to amount mock trials that resulted in severe consequences … As a result, pushback is happening on a case-by-case basis, and it isn’t going away. “I’m getting as many calls as ever,” said Andrew Miltenberg, a Manhattan attorney who has sued some two dozen universities over the past few years on behalf of male students. Miltenberg said schools have been ill equipped – both structurally and ideologically – to deal with sexual abuse cases. “In 2011 and 2012, when the Dear Colleague Letter came down, most universities didn’t have Title IX coordinators,” he said. “Most conduct review boards were set up for things like plagiarism, cheating, or throwing a lamp while under the influence. When the universities saw the uproar about sexual assault,” he continued, “what did they do? Did they hire retired FBI agents or police detectives to carry out Title IX investigations? No. They turned to people whose backgrounds are either in victim rights, or domestic violence, or they’re women’s rights advocates, people who have led campaigns to be tougher on sexual assaults. These are not the people who should be investigating and adjudicating these matters.” … [While] the number of cases that have gone favorably for them has led some lawyers and analysts to believe that new case law is being made, especially in reaffirming the legal necessity for men facing expulsion to have the right, at the very least, to question the women accusing them. But Miltenberg is cautious. “We have achieved some very good results, and progress towards transparency, equity and due process are being made,” he said. “But there is still a long road ahead until we can have confidence in the campus disciplinary process and the manner in which courts are interpreting Title IX.”

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