Last year, the phone rang in the office of the New York attorney Andrew T. Miltenberg. On the line was Tom Rossley, a trustee for 23 years at Drake University in Iowa. His son, Thomas, had just been expelled after a woman accused him of rape, and Rossley, such a longtime booster that he was sometimes called Mr. Drake, was on the verge of being kicked off the board for protesting the verdict, he believed.
While a trustee’s son might be expected to receive favorable treatment, Rossley thought that possibility had been eclipsed by the school’s greater urgency to demonstrate how seriously it took sexual assault, because it was under federal investigation at the time for supposedly mishandling a victim’s complaint two years earlier. “I’m not definitively saying it didn’t happen,” he told Miltenberg. “I’m not saying it did happen. What I’m saying is we don’t know, and they didn’t really want to find out.”
As Rossley would explain to Miltenberg, on the night in question, Thomas, then 21, met up with a woman in his circle of friends. Each had drunk heavily. According to the school investigator’s report, the woman remembered Thomas having sex with her in his dorm room, her telling him to stop and him stopping. But Thomas, who said he’d had the equivalent of 15 drinks, didn’t recall having intercourse and woke up fully clothed. Rossley noted what he believed to be many flaws in the process of his son’s case, including the school investigator’s not accepting key witnesses — among them Thomas’s roommate, who claimed he was present in the room the entire night. Although in the classroom Drake accommodated Thomas’s lifelong language-based learning disability, which made communication difficult, he was left to defend himself in a nine-hour hearing, in which he frequently stumbled and was asked to speak up. (Drake declined to comment on the details of the case but broadly disputes the Rossleys’ characterization. In court filings, the school said Thomas could have introduced additional witnesses at the hearing and did not request disability accommodations.)
Rossley had contacted Miltenberg to ask him to handle their suits — Thomas’s claiming gender discrimination and due-process violations, and Rossley’s for retaliation after the board removed him. Miltenberg’s name was easy to find because by then he had established a reputation as “the rape-guy lawyer,” as a colleague describes him, or “the due-process guy,” as he sometimes calls himself. To Miltenberg, the Rossleys’ experience showcased “the disparity between how men and women are being treated” under Title IX — the federal law that prohibits gender discrimination in schools that receive public funds — and demonstrated how campus responses to sexual assault have become driven by internal politics and institutional fears...
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...When DeVos rescinded the letter in September, Miltenberg released a statement that did not betray any doubts but instead stated that he was “encouraged” by the action. But when he elaborated to me, he sounded more conflicted. Although he was glad more people were talking about the issue, he said he was “having a bit of a crisis of conscience.” Over the months he had worked on the woman’s case, the conventional wisdom about campus sexual assault had changed, with greater public focus on concerns about due process. “And insanely, I’m one of the people, for better or worse, who had some impact on shifting the narrative.” At the same time, he worried that the rescission could lead to a reaction of its own. He had received nearly a dozen new cases — all decided in the weeks immediately surrounding DeVos’s speech — in which he believed the schools had meted out unduly harsh penalties to make “a political counterstatement.” That prospect was as concerning to him as the school’s inaction on his female client’s case.
“There are real topics in this world that are zero-sum games,” he said; finding a balance between addressing sexual assault and ensuring due process didn’t need to be one. He found himself thinking that advocates on either side of the debate shared a sense of battlefield camaraderie, because only they saw what was really going on. “Sometimes you sit in this hearing and your heart breaks for both people,” he said. “Sometimes I walk out and think the whole thing is a [expletive]: terrible for him, terrible for her, terrible for the parents.” It would be disingenuous, he said, not to acknowledge the concerns of the other side: That if the process is broken, it’s broken at least as much for victims as the accused. That correction can become overcorrection in either direction. The pendulum swings both ways. It shouldn’t, he said, “but I don’t know how to stop it.”
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