Imagine living in a place where those accused of committing violent crimes are considered by the system to be guilty until the accused can prove their innocence. In such a place, the system may not even wait for an alleged victim to complain of a crime being committed, but bring charges on their own based on sheer speculation. The accused gets no access to the evidence or the witnesses, and receives no answers when asking questions about them. The same system that convicts the alleged perpetrator hears the only appeal available.
Sounds like a terrible place to live, right? Reminiscent of the old Soviet Union, maybe, or a banana republic? Unfortunately, that far-off land may be in our own back yards, at the local college or university. It may take an avalanche of lawsuits to restore due process at the very institutions on which we rely for finishing the education of our best and brightest.
Take the example of a male student at the University of Massachusetts at Amherst, who filed suit against the school after having found him guilty of sexual misconduct. During a dorm room party, he met a young woman attending Amherst, flirted for a while, danced and socialized, and then had consensual sex, according to the lawsuit. The female student could not recall what happened the next morning, and went for an evaluation at the campus health center. The next day she filed a written complaint, which never included any accusations of rape, assault, or harassment.
Yet Amherst immediately opened an investigation of those specific allegations and ordered him to move off campus. Two months later, the school held a hearing without providing the accused with access to the complete set of documentation, and evidence was ignored – as were a number of the questions asked by the accused. After three days, Amherst informed him that he was determined to be “responsible” for “sexual harassment, sexual misconduct, and [violating] community living standards.” The school expelled him after he appealed to the same administration responsible for the original hearing.
Even when schools clear people, they end up ruining their lives. Kevin Parisi discovered that after getting evicted from Drew University in New Jersey when a woman accused him of sexual assault. The school never took the accusation to the police for a proper investigation, instead taking three months to find the disabled Parisi “not responsible” after an administrative hearing. His panic attacks have increased, and his previous back problems aggravated by the ordeal. He’s fortunate, however, since men are almost guaranteed to lose their hearings and appeals in these situations.
Nor are these uncommon experiences any longer. The shift toward kangaroo courts at universities and colleges did not come entirely from an academic impulse to innovate on justice and law enforcement. The impetus comes from a new effort by the Department of Education to press schools to respond to allegations of sexual misconduct by using the Title IX federal law as a lever. The law, passed in 1972, prohibits schools that accept federal funding to discriminate based on gender, and being “excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance.”
Until recently, the most controversial application of Title IX had been whether schools had to eliminate male athletic competitive sports because of a dearth of opportunities for females. Three years ago, that changed as the Obama administration reinterpreted* Title IX to require schools to respond to allegations of sexual harassment of all kinds: “sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”
Furthermore, rather than allow schools to presume innocence before finding guilt beyond a reasonable doubt, the Obama administration demanded that schools employ the civil standard of “preponderance of the evidence.” That standard, though, applies to cases brought to court, where rules of evidence and discovery still guarantee due process – as well as an unbiased court.
Furthermore, this pressure comes in part from a moral panic based on bad data. The April 2011 directive cites statistics from the National Institute of Justice that “1 in 5 women are victims of completed or attempted sexual assault while in college.” That study consisted of an online questionnaire conducted at only two universities, with uncontrolled participation – not a formal survey conducted under rigorous academic standards. The construction of the questions and interpretation of the answers produced a large amount of ambiguity as to the meaning of the survey, as the NIJ itself admitted.
Now the Department of Education has more than 70 universities and colleges under investigation for a lack of attention to complaints sexual assaults and harassment, claiming that these schools do not act stringently enough. The schools themselves certainly have a difficult job in policing themselves. Unlike most businesses, almost all universities and colleges have residences as well as business areas, which means that they have some legal and moral responsibility to keep order and maintain safe living and working environments. This means that the schools have more liability than other businesses in maintaining safe workplaces, and the students and their parents certainly have higher expectations, even apart from the DOE.
None of that, though, amounts to a convincing case for the government to force universities to forego due process and respect for a presumption of innocence. Crimes should be handled by the police and courts, which have the expertise to handle such claims and strict legal requirements on how to proceed with investigations and prosecution. Lesser allegations should either go to civil court or to other independent legal structures that enforce due process and protect the rights of all students, especially on sensitive issues that can unfairly tarnish a person for life. School administrators are not competent to act as both law enforcement and judges, and the DOE’s attempts to deputize them for that mission tramples on basic American rights.
The list of lawsuits from this novel approach to jurisprudence and Title IX keeps growing in the meantime. Let’s hope that the coming legal tsunami may have federal courts giving the Department of Education an F on due process and constitutional law, and forces an end to this interpretation of Title IX.
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*Clarification: Hans Bader, a senior attorney at the Competitive Enterprise Institute, says Title IX was not “reinterpreted” by the Obama administration. Here is a portion of his comment:
Your commentary in The Fiscal Times made some good points about how the Obama administration is attacking due process on campus, but it also said some things that will make knowledgeable lawyers roll their eyes (I say this as a former Education Department lawyer, who handled student sexual harassment claims early in the Bush Administration). Which is a shame, because lots of due process violations are in fact occurring on campus due to administration pressure, and you are right to point them out.
But Title IX was not “reinterpreted” by the Obama administration as covering “allegations of sexual harassment of all kinds,” since Title IX being interpreted to cover sexual harassment on campus under Title IX back to the Clinton Administration (for students) and to the Bush Sr. administration (for faculty and staff harassment), and was adopted by the courts many years ago (including a Supreme Court ruling in 1999).
What IS new about the Obama administration’s guidance is that it required colleges to (a) restrict cross-examination of complainants, (b) required them to replace the traditional clear-and-convincing evidence standard they used in campus discipline with a preponderance-of-the-evidence standard, and (c) restricted the appeal rights of accused people. (Beyond a reasonable doubt – as opposed to clear-and-convincing-evidence -- was not the customary standard in internal college discipline even before the Obama administration, and indeed, a federal appeals court ruling in Williams v. University of Georgia, unfortunately ruled that colleges cannot refuse to hold disciplinary proceedings even for students acquitted of rape by the criminal justice system’s beyond a reasonable doubt standard, but rather must independently adjudicate their guilt or innocence on campus – although federal appeals court rulings imply that a lesser presumption of innocence, such as clear-and-convincing evidence, is OK in campus disciplinary proceedings).