Title IX Retaliation Lawsuit Against School In Disabled Student Wrongful Sexual Assault Investigation

Author: Nesenoff and Miltenberg, LLP
Published: Wednesday 22nd February 2017
Summary: Drake University wrongfully expels disabled male student then retaliates against father for speaking out.

In a first-of-its-kind Title IX retaliation case, a former member of the Board of Trustees of Drake University filed a lawsuit against the school and its officials today for retaliating against him after he spoke out against the University's improper conduct, including the wrongful sexual assault investigation of his disabled son. The plaintiff is being represented by prominent Title IX campus assault due process attorney Andrew Miltenberg.

According to the complaint filed in federal court in the Southern District of Iowa, Drake University openly discriminated against and targeted its disabled students and, together with its Board of Trustees, instituted a concerted attack on all those who dared speak out for the rights of Drake University's students, including the plaintiff, Tom Rossley. The lawsuit describes how Mr. Rossley experienced first-hand Drake University's wrongful treatment of disabled students when the school maliciously withheld necessary accommodations from his disabled son. As a result of his advocacy for his son and Drake University students, the Board, with the support of the University President, removed Mr. Rossley from the Board of Trustees.

Rossley, a well-respected member of the Drake University community, also filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against the school, which was cross-filed with the Iowa Civil Rights Commission.

"While engaging in a biased and unlawful Title IX investigation of Mr. Rossley's disabled son, the officials at Drake University purposefully ignored and failed to investigate the student's numerous pleas for help after he was sexually assaulted by a female student," said Miltenberg, who has represented dozens of accused male students at colleges and universities. "My client made numerous efforts to address the heinous violations of his disabled son's rights to school officials and the Board of Trustees. Instead of remedying the school's numerous unlawful actions, they instead instituted an immediate attack on Mr. Rossley and effectively silenced and covered up his complaints, to the direct detriment of his family, career, and Drake University's students."

Among the charges against Drake University and its Board of Trustees include: violation of Title IX of the Education Amendments of 1972, breach of fiduciary responsibilities, and breach of contract.

The plaintiff's son also filed a lawsuit against Drake University in federal court in December, charging that the school violated Title IX equal protection clause, his rights to due process, and the Americans with Disabilities Act. The case state's that the University wrongfully expelled the student and refused to investigate his simultaneous charge that his female accuser sexually assaulted him on the same night of the alleged incident--even considering her own admission that she initiated in sexual conduct without his consent.

Additionally, the University failed to properly accommodate the student's ADHD, anxiety, and language-based learning disabilities during the disciplinary process, despite the fact that Drake University is home to the Harkin Institute for Public Policy and Citizen Engagement, which lists advocacy for people with disabilities as one of its primary areas of focus. According to the lawsuit, officials at Drake University took advantage of the student's language-based disability in order to railroad him out of the University.

Lawsuits Cite US Department of Education "Dear Colleague Letter" Directive Both lawsuits contend that Drake's violation of Title IX was strongly influenced by a directive of the U.S. Department of Education's Office for Civil Rights (OCR), which encourages male gender bias and violation of due process rights during sexual misconduct investigations.

According to the complaint, the U.S. Department of Education issued in 2011 what has become known as the "Dear Colleague" letter to every college and university receiving federal funding, addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. The 19-page "Dear Colleague" letter contains guidance and directives on how schools are to address sexual assault and misconduct to comply with the Department's view of Title IX. Among other things, the "Dear Colleague" letter dictated that schools use a lower burden of proof -- the "preponderance of the evidence" standard, rather than the "clear and convincing standard."

"As a result of the U.S. Department of Education's unlawful directive, there has been a surge in colleges and universities mishandling investigations and wrongfully prosecuting male students for fear of losing federal funding," Miltenberg said. "These directives have resulted in a clear disregard for the due process rights of male college students and have created a culture of male-gender bias on campuses throughout the country."

Miltenberg, a partner with Nesenoff and Miltenberg, LLP based in New York City, is currently engaged in several groundbreaking Title IX cases representing male students at Brown University, Columbia University, Georgia Tech and Colgate among others. For more information, visit www.nmllplaw.com

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