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College sued for Title IX investigation against student

Editor’s note: The legal documents referenced and quoted from in this article were lawfully obtained by The Mac Weekly, and are publicly available online. The letters and emails referenced in this article were all entered into evidence during court proceedings, and are all publicly available as well.

Macalester College was sued last February by a former student who accused the college of violating his right to due process and failing to provide him reasonable accommodations for his disabilities. The student, Alec Scott Jackson ’18, was being investigated by the college for an alleged case of sexual assault, and the lawsuit charged Jackson’s rights were violated during that disciplinary process. Jackson’s appeal for a restraining order against Macalester, which would have prevented them from carrying out his investigation while the suit was pending, was denied, and Jackson withdrew the lawsuit a few days later. Jackson no longer attends Macalester College.

The claim of sexual assault stemmed from an alleged incident that took place off-campus against a non-Macalester student in early October. Jackson requested “reasonable accommodations,” which would have allowed him to have full attorney representation throughout the investigation. Jackson’s lawyers argued that his disabilities would prevent him from effectively participating in the disciplinary process, and that both he and the college would benefit from that accommodation. Macalester denied that request.

Macalester’s sexual misconduct policy gives all students involved in a Title IX investigation the right to an advisor who can support them throughout the process. It does not, however, allow the advisors to directly participate or speak for the students. Macalester argued that Jackson’s request would violate that aspect of the policy, and offered alternative accommodations in place of full attorney representation.

After a few further meetings to discuss accommodations, and the halting and resuming of the investigation at the request of the claimant in the sexual assault case, Macalester and Jackson agreed that his psychologist could offer him assistance throughout the investigative process. Jackson and Macalester scheduled an interview between him and a third-party investigator on February 25, a standard step in the investigation process for sexual misconduct cases.

Lawsuit filed

On February 23, Jackson filed a lawsuit against Macalester College and the U.S. Department of Education. Jackson’s attorney notified Macalester that he would not attend the scheduled interview, saying in a letter that Jackson “had no choice but to resort to legal action to obtain appropriate due process, protection and accommodations.”

The lawsuit argued that Macalester’s handbook and Sexual Misconduct Policy violated Jackson’s right to due process, which Jackson claimed that he had a right to throughout the disciplinary process. Not allowing Jackson to have the full representation of a lawyer denied him “due process protections necessary to ensure a fair determination of the facts [of his case],” his lawsuit argued. According to the lawsuit, Macalester’s policy “lacks even the most rudimentary due process protections for the accused in disciplinary matters, which in turn virtually guarantees that the outcomes of these investigations will be arbitrary in close cases.”

In 2011, the Department of Education sent a letter to all colleges around the country informing them of steps they must take to meet legal obligations under Title IX. The letter called on schools, including Macalester, to establish a Title IX Coordinator, take immediate steps to end sexual harassment and sexual violence and protect all students from sex discrimination. The letter explicitly stated that public schools must provide due process to students facing sexual misconduct charges, as long as they “do not restrict or unnecessarily delay” the investigation. However, the letter did not address whether or not students at private colleges are entitled to similar protections.

Jackson’s lawsuit argued that by not affording those protections to students at private colleges, the Department of Education is violating students’ constitutional right to due process. The lawsuit argued that as a result of the Department’s letter, students — especially those accused of sexual misconduct violations — are afforded “a significantly lower level of due process.”

The lawsuit went on to argue that Title IX actions by private colleges, such as Macalester, are effectively actions conducted by the federal government because the Department has heavily influenced those policies.

Therefore, private colleges are required to provide due process protections to their students.

The Department also required that, when schools are investigating cases of sexual misconduct, they adopt a “preponderance of the evidence” standard. In those cases, colleges must prove that the alleged action was “more likely than not” to have occurred, a weaker standard of proof than in other civil cases, which often use a “clear and convincing evidence” standard. The letter advised a 60-day timeline for colleges to complete sexual violence investigations, a timeframe which Macalester repeatedly cited as justification for its willingness to move on with Jackson’s investigation.

Jackson also sued Macalester for alleged violations of the Americans with Disabilities Act and the Rehabilitation Act. According to his lawsuit, Macalester failed to make reasonable accommodations throughout the process for his documented disabilities. As Macalester is an institution which receives federal funding, it is prohibited from discriminating on the basis of disability. Jackson argued that the failure to accommodate him in his disciplinary process led him to receive unequal access to the college’s resources, and could endanger his future standing at the college.

The lawsuit argued that Macalester’s denial of Jackson’s request for accommodations “subjects him to the likelihood that he will be excluded from education at the College on the basis of disability despite the fact that he does not pose a direct threat to the health or safety of others.”

After Jackson was initially arrested in October and released without charges, Macalester issued a no-contact order against Jackson, severely limiting the amount of time he can spend on campus. This was, according to court filings, an interim measure “needed to protect the parties or the broader campus community.” The no-contact order was also partially motivated by a previous sexual misconduct charge brought against Jackson in 2014.

Jackson, through his lawsuit, sought a declaration that the lack of due process for private college students is unconstitutional, and an order that would require private colleges to provide similar protections. Jackson also wanted Macalester to issue a declaration that its sexual misconduct policy violated due process laws, an injunction that would halt its disciplinary process, and a declaration that Macalester failed to accommodate his disabilities.

Attempts to halt investigation

Macalester first said it would continue its investigation of Jackson unless the college received a court injunction ordering it to stop. Karla Benson Rutten, Macalester’s Title IX Coordinator, told Jackson “the College will move forward with concluding the investigation and adjudication of the complaint, with or without your participation,” as Jackson did not attend the February 25 meeting as previously scheduled.

Macalester argued that it could not postpone its investigation while the court proceedings were ongoing because the Department of Education’s 60-day guideline to carry out sexual misconduct investigations had already been delayed, and it could not ignore that guideline. Jackson’s lawyers inquired whether violating the 60-day guideline would trigger legal action against Macalester, and did not receive a clear answer.

On February 28, five days after the lawsuit was first filed, Jackson filed a motion for a restraining order against Macalester. The motion, if granted, would prevent Macalester from investigating Jackson’s sexual assault charge. It would also prevent the Department of Education from retaliating against Macalester for not investigating the claim. Macalester then chose to suspend its investigation into Jackson until the motion for a restraining order was approved or denied.
According to the motion filed in court, successful restraining orders may be issued when there is a threat of irreparable harm for the plaintiff, little chance of harm for other parties involved (in this case, Macalester), a probability of success for the plaintiff and a public interest in issuing a restraining order.

Arguments in support of the restraining order claimed it was necessary to halt the investigation during the legal process, as Macalester’s failure to provide due process or reasonable accommodations would have led to Jackson’s imminent expulsion from Macalester — an “irreparable harm.” Jackson’s lawyers argued that Macalester failed to provide him with a sufficient notice of his charges or a proper hearing, which means the “probability of success” for his case was fairly high.

Macalester and the Department of Education issued orders opposing the restraining order, stating that the order would violate Macalester’s legal obligation to “promptly” investigate sexual misconduct complaints. Macalester disputed the charges that Jackson was not provided a proper notice or hearing, saying that his complaints about the policy were subjective, and Macalester followed all necessary guidelines in his case. Macalester’s Title IX policy contains all necessary rights and safeguards that are permitted for students, and thus the claim that Macalester is acting as a government agent is invalid. Macalester argued that Jackson’s fears of irreparable harm were not valid, since the investigation was still underway and any punishments, such as expulsion, were still entirely hypothetical. Granting a restraining order would harm Macalester, as it would weaken the school’s Title IX policies and jeopardize the safety of campus and potential victims that may come forward, the school argued.

Macalester also argued against Jackson’s charge that he was not provided reasonable accommodations, saying that allowing him to have full legal representation would lead to inequity in the process, and that the school offered him different accommodations which were sufficient. Macalester argued that it had “done more than [the Americans with Disabilities Act] requires,” and reasonable accommodations can be provided even when they are not what the student requests.

On March 11, the motion for a restraining order was denied. In her ruling, U.S. District Court Judge Wilhelmina Wright stated that in the Court’s opinion, Jackson did not demonstrate that the restraining order was necessary to prevent him from suffering “immediate, irreparable harm.” Jackson’s claim that the restraining order was needed to prevent imminent expulsion was speculative and unsubstantiated, according to Wright. Therefore, the restraining order on Macalester’s investigation was denied.

Six days after the restraining order was denied, Jackson voluntarily dismissed the case and withdrew the lawsuit.
Marty Carlson ’94, Jackson’s attorney, said in an interview that the ruling was disappointing. However, he noted that Wright’s denial of their restraining order was not based on a large “categorical rejection” of their argument, but was a more limited ruling based on one aspect of their case for a restraining order.

“You’ve got to recognize that there’s a fairly high likelihood that you’re not going to be successful,” Carlson said. “This is a high-risk litigation from the plaintiff’s perspective, but if you aren’t willing to take those sorts of risks, nothing can get changed in the long run.”

Jackson, in the same interview, said that he initiated the lawsuit “to help [himself] out of an undeserved and unfair situation, and also to set what we hope would be a national precedent in order to give the accused in situations such as this more due process protections.” He said that he had no reservations about publicizing his case and trying to start a broader conversation about this issue.

Carlson is a former member of the Alumni Board who had provided legal services for many Macalester students in the past. According to Carlson, he was notified of the case by Dean of Students Jim Hoppe, who contacted him and told him Jackson was currently in jail, and would be notifying him to seek legal representation.

Changes to Macalester policies

Macalester’s most recent Sexual Misconduct Policy, adopted July of last year, outlines the protocol which must be followed to investigate and adjudicate claims of sexual misconduct, which includes sexual violence and sexual assault. This process was followed in Jackson’s case, which began with a meeting between him and Benson Rutten.

According to Benson Rutten, the most recent changes to Macalester’s policy altered how reports of sexual misconduct violations are processed, and how those complaints are investigated.

Under the new process, Macalester has a legal obligation under Title IX to respond to incident reports. If Benson Rutten determines that the report violates Macalester policy, and the person filing the report wishes to file a complaint, the investigation proceeds. Macalester hands the investigation off to outside investigators, who conduct interviews and gather information about the incident. The investigator(s) submit a report to the Title IX Coordinator. In cases of sexual assault, the complainant and respondent can add additional information or make clarifications on the written report. Two administrators (in cases involving students, one of these people is the Vice President for Student Affairs) make the final decision on the investigation. If they determine that the preponderance of the evidence standard is met, meaning that it is “more likely than not” that a policy was violated, then the respondent is found officially responsible.

Macalester revised these policies in order to “follow the guidelines set forth by the Department of Education … with a goal of creating a prompt, fair, respectful and thorough process,” according to Benson Rutten.

April 1, 2016

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