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As other articles on this website demonstrate, male students have been placed at a disadvantage in recent years when they are accused of committing misconduct involving female students. Nobody thinks that men should be allowed to abuse women, but too many college administrators seem to think that Title IX requires them to bend over backwards to support all accusations of sexual misconduct made by female students while erecting roadblocks to a male student’s right to defend against those accusations. 

That attitude became prominent after the Department of Education provided a guidance to schools in 2011 that was widely perceived as threatening federal funding to schools that treated male students fairly. Instead of treating the accuser and the accused equally, without prejudging the accusation, the guidance encouraged schools to strip students accused of sexual misconduct of their fundamental rights, including the right to see the evidence, to cross-examine the accuser, and to base disciplinary decisions on clear and convincing evidence. 

The Department of Education’s guidance seemed to presume that female accusers are always truthful while male students who deny accusations pose a threat to the educational environment. The Department elevated accusations over evidence while adopting the sexist assumption that female students are so tender that they must be shielded from the accused student’s opportunity to expose false accusations by questioning their stories. 

The Department eventually rescinded that guidance after lawyers, civil libertarians, and law professors objected to its unbalanced favoritism of female accusers over male students who faced expulsion or other discipline on the strength of unsupported accusations. New rules have been proposed that strike a better balance by treating both sides impartially while respecting the presumption of innocence and the right of the accused to a fair hearing. 

Discrimination Against Men on Campus 

Why did the Department of Education instruct colleges and universities to adopt rules that were unfair to accused male students? Glenn Harlan Reynolds, a law professor at the University of Tennessee, suggests an answer. In Professor Reynolds’ view, institutions of higher learning engage in broad discrimination against male students. 

Professor Reynolds points out that colleges and universities are becoming gender unbalanced. While states continue to enact laws designed to give women greater opportunities to be represented in corporate boardrooms and upper management positions in the workplace, equal representation in the student body was achieved many years ago. In fact, students today are more likely to be female than male. 

Professor Reynolds cites evidence that K-12 teachers encourage girls to pursue a higher education, leaving boys with the belief that their post-high school education is unimportant. He also suggests that colleges have become “an anti-male space” that supports the future of women after they graduate while condemning males in negative terms, leaving the impression that males are “toxic.” 

Gender discrimination is wrong, regardless of the gender that is victimized by it. Professor Reynolds documents favoritism of women with regard to scholarships, housing and campus resources. However, discrimination is particularly insidious when it may prevent a student from completing an education. 

As Professor Reynolds points out, colleges and universities regard accusations of sexual misconduct against male conduct as presumptively true. “The accuser is given all sorts of help and deference,” the professor writes, while “the accused is treated as a criminal from day one, and often not allowed to call witnesses, cross examine his accuser, or otherwise enjoy the sort of due process that, say, a university administrator would demand if accused of a crime. 

Lawsuits challenging favoritism of female students and the Department of Education’s recent recognition that students do not lose their right to due process simply because they are male might eventually persuade schools to treat both genders equally. That change is necessary to assure that students are not expelled based on accusations of sexual misconduct that are never tested and proven in a fair process.  

False Accusations Against Male Students 

It may be that campuses strive so hard to make female students feel safe and empowered that they send the wrong message. A female student who has a grudge against a male student may come to understand that she has the power to get the male kicked off campus (and ruin his life) simply by accusing him of sexual misconduct. When students come to believe that accusations against men will be accepted at face value, a vindictive student may be unable to resist the temptation to make a false charge of sexual misconduct. 

Professor Reynolds points to the example of Saifullah Khan, a Yale student was accused of rape. Yale suspended him but placed expulsion proceedings on hold until criminal charges were resolved. A jury found Khan “not guilty” on all counts. Inconsistencies in the accuser’s story and her attempt on cross-examination to minimize text messages she sent to Khan made the jury doubt her veracity. 

Khan’s disciplinary hearing occurred after his acquittal. His accuser was not required to attend in person; she told her story via Skype. Khan’s cross-examination of his accuser was limited. The decision-making panel found by a “preponderance of the evidence” that the accusation was probably true. The decision-makers may have been pressured by a campus climate that views men as presumptively guilty of sex crimes and by a petition signed by thousands of students who, despite Khan’s acquittal, insisted he was a rapist who should not be allowed to resume his education. 

Unfortunately, schools tend to be skeptical of evidence presented by the accused while accepting doubtful stories told by accusers. For example, an accuser at a California university who willingly had sexual intercourse with her boyfriend many times over the course of their sexual relationship decided, after they broke up, that she had not consented to their first sexual encounter. The school expelled the male student despite evidence of text messages in which his accuser described him as kind and loving.  

Families Advocating for Campus Equality (FACE), an organization founded by the mothers of students who were disciplined after being falsely accused of sexual misconduct, is one of the primary organizations fighting to achieve equal rights for male students who face disciplinary proceedings. Criminal defense lawyers who defend students in campus disciplinary hearings also play their part in persuading schools that guilt cannot be assumed simply because an accused student is male. 

Joining a growing trend, New York enacted a law in 2015 to combat sexual violence on college campuses. While that purpose is laudable, the “Enough is Enough” law strikes an unwise balance between the desire to protect students from criminal acts and the need to protect innocent students from false accusations. 

Governor Andrew Cuomo touted the law as “the nation’s most aggressive policy” to end sexual assaults on campus. Unfortunately, laws like New York’s often encourage schools to accept every sexual misconduct accusation at face value while depriving accused students of the opportunity for a fair hearing before they face expulsion or suspension. 


Affirmative Consent 

A sexual assault consists of sexual contact or intercourse without consent. While criminal laws generally define consent as a voluntary agreement, student disciplinary codes in New York must now define consent more narrowly.  

The law requires universities to add specific language to its code of conduct about consent to engage in sexual behavior. Most of that language is uncontroversial and tracks existing law. Consent cannot be coerced by force, intimidation, or threats. Consent can be withdrawn at any time and sexual activity must stop at that point. Consenting to sex in the past does not automatically constitute consent for all future sex acts. 

The code must also provide that consent may only be given by someone who is capable of consenting. A frequent issue in sexual assault accusations on campus is whether the accuser was too intoxicated to give consent. The code must state that a person who is incapacitated and unable to make a voluntary choice to have sex is incapable of consenting.  

More troubling is the new law’s requirement that a university’s code of conduct must include this definition of “affirmative consent”: “Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. 

Consent is often conveyed by participation in a sex act. Active participation is an “action” that signals “clear permission” and “willingness” to have sex. The line between active and passive participation, however, is difficult to draw. It is true that using force to resist a sexual assault is not required to convey lack of consent. At the same time, the failure to resist at all, including verbal resistance by saying “no” or “stop or “I’m not ready for to have sex with you, may well signal consent. 

Some people are quiet and passive by nature. Consensual sex is no less consensual simply because a participant is silent. In a criminal prosecution, a jury may view passive participation and silence as strong evidence of consent. The required code of conduct places students accused of a code of conduct violation in a difficult situation by depriving them of opportunity to demonstrate that passive consent was given for a willing sexual encounter. 


Interim Suspensions 

Public colleges and universities are required to respect the constitutional guarantee of due process before they deprive an individual of liberty or property. Courts have consistently found that students have a property interest in their educations and may have a liberty interest in avoiding reputational injury that results from discipline. 

The New York law pays too little attention to the due process rights of accused students. In particular, the law not only allows but requires colleges to suspend accused students immediately, with no hearing or other procedural safeguards, when the students are “determined to present a continuing threat to the health and safety of the community.” The law does not explain how that determination is to be made in the absence of a hearing.  

No determination that a student is a “threat” can be made fairly in the absence of a hearing at which the accused student has the right to contest the evidenceto present his own evidence, and to require wrongdoing to be proved. While the law allows a student to request a “prompt review, reasonable under the circumstances” of the interim suspension, it is not clear that schools will deem a full hearing that adequately safeguards the rights of the accused to be “reasonable under the circumstances.” 

In any event, due process usually demands that a hearing be held before a deprivation occurs. A “review” of a suspension that has already been imposed is no substitute for basing a suspension on proof at a fair hearing that is sufficient to overcome the presumption of innocence. The time in school that a student loses during an interim suspension cannot be returned if an eventual hearing determines that the student did nothing wrong and poses no threat at all. 


Due Process Safeguards 

The due process safeguards that must be provided for accused students at a final disciplinary hearing are inadequate. The law gives accused students the right to testify and present evidence, but it makes no mention of the right to confront and cross-examine the accuser. In fact, the accuser is even required to attend the disciplinary hearing. Cross-examination of accusers exposes false accusations and has long been recognized as the most powerful assurance that accusations are tested fairly. 

While the law requires schools to have a student’s responsibility determined by impartial decisionmakers, the law does not require schools to base findings of responsibility on “clear and convincing” evidence. Many schools have used a less demanding “more likely than not” standard that gives students too little protection against false accusations.  

Governor Cuomo believes the New York law is a model for the nation. In fact, the law makes it much too easy for schools to expel innocent students who are falsely accused of sexual misconduct. The law needs serious revisions before it can be regarded as a model to be followed by other states.   

As the U.S. Department of Education (DOE) notes in a footnote to its proposed new regulations for how schools handle Title IX complaints of sexual discrimination, including harassment or misconduct, more than 90 colleges have lost due-process challenges brought by students challenging school disciplinary actions. That means higher educators lose about half of the time when a court reviews how they handle Title IX complaints.

Not only have some basic positions staked out by what DOE artfully but ambiguously describes as “guidance” — a very low evidentiary standard, procedures giving short shrift to the presumption of innocence and other rights of those accused, and much more — drawn substantial criticism from legal scholars and civil libertarians, but DOE’s new proposal says it also found schools uncertain whether the agency’s guidance was legally binding (in its communications, DOE finessed that crucial question, but did manage to speak menacingly of cutting off federal funds to schools which failed to comply with Title IX requirements, whatever those might be).

I have previously discussed several college and university Title IX actions or failures to act, which courts rebuffed. These included a federal appeals court’s ruling that the University of Michigan violated due-process rights when it refused to allow an accused to cross-examine the accuser or other witnesses in any way in a case which turned on witness credibility,

Or take the case of Keith Humphrey, an NFL receiver who played football at Michigan State. While in college, another student complained he sexually assaulted her in her dorm room. Humphrey cooperated with local police, who declined to prosecute. Although he was not permitted to pose any question to the accused, who also refused to answer questions from the college’s investigator, the college’s Title IX panel cleared him.

But, unlike in criminal cases, where the U.S. Constitution prevents double jeopardy, under Title IX, an accuser is permitted to appeal a decision clearing the accused, which Humphrey’s accuser did. But because this time, the school sent an email notice to an old address the accused no longer used, he didn’t receive notice of the appeal hearing, much less have an opportunity to participate in it. This time, the school’s disciplinary panel changed its mind, and held Humphrey responsible.

So, because the college reversed itself at a hearing the accused was not even aware of, he was expelled from Michigan State’s graduate school (he was attending during the NFL off-season), and the Houston Texans decided it couldn’t keep him on the team with that on his record. Not surprisingly, no other team has offered him a slot on their roster, either.

It’s still too early to predict the outcome of DOE’s ongoing rulemaking proceeding, but it’s not difficult to see how higher educators — seeing their continued federal funding potentially threatened if they didn’t go along — had for years yielded to adopting standards that official enthusiasts pressed on them, whether or not that “guidance” clashed with basic constitutional rights. The previous, now-rescinded guidance was adopted without opportunity for public comment; this time let’s hope that the previously disregarded values get full consideration.

A Baylor University administrator is being accused by anonymous critics of having insinuated himself into campus groups protesting the school’s handling of sexual assault claims, then using his position to pass on to school officials and others information on the groups’ protests and other plans.

The charges first surfaced in the publication PRWeek in its coverage of the long-running controversy over a Title IX lawsuit claiming numerous sexual assaults by members of the Baylor football team and the school administration’s response. The dispute has cost the jobs not only of the football head coach and athletic director, but also of the chancellor, former special counsel during Bill Clinton’s impeachment investigation, Kenneth W. Starr.

Specifically, critics allege Baylor’s director of student activities Dr. Matt Burchett worked closely with campus groups advocating for survivors of sexual violence, helping plan events, such as vigils and demonstrations, to publicize the issue, even advising on the wording of the groups’ public statements. Email correspondence showed Burchett frequently kept other university officials and a public relations firm retained to advise on “reputation management” apprised of what he had learned about the groups and their plans while working with them.

A spokesperson at the private Baptist-founded university in Waco, Texas denied Burchett acted inappropriately, maintaining his job required him to stay in close touch with campus groups and to facilitate their “expressive activities.” Campus groups were under no obligation to accept any advice Burchett offered, a school spokesperson added.

Baylor is facing a Title IX lawsuit filed by 10 unnamed students, who claim the school failed to adequately respond to their complaints of having been sexually assaulted. The incidents complained of date back as far as 2004; the most recent occurred in 2016.

Word of Burchett’s possible double role — befriending and advising campus activists while also sharing what he learned with campus officials — appeared in the public relations publication after Burchett gave a deposition (which has not yet been publicly released) in the Title IX lawsuit. School representatives say they do not believe students were responsible for the leak.

Counsel for the Title IX lawsuit’s plaintiffs says the university’s public relation strategy has been to portray its Title IX problems as solely related to its football team, and not to broader failures on the part of its administration.

Members of the school’s football team have figured in several scandals. In 2015, a former defensive end was convicted of sexually assaulting a member of Baylor women’s soccer team, and sentenced to six months in a county jail. In 2014, another defensive end drew 20-year sentences on each of two convictions for sexual assaults of Baylor students. A third defensive team player is scheduled to face trial this December on a rape charge based on a 2016 incident.

This July, the school settled, for an unannounced payment, a Title IX lawsuit brought in 2015 by a former member of its women’s volleyball team that she had been gang-raped by football team members in 2012, during a party at an off-campus apartment. During the lawsuit, it emerged team officials received reports on the incident, no one at the university reported it to the school’s judicial affairs office or to police.

Earlier this year, a federal magistrate judge in Harrisonburg, Virginia issued a decision recommending that state college James Madison University (JMU) pay almost $850,000 in attorneys’ fees and court costs to the pseudonymous “John Doe,” a student whom the school wrongly punished for an assault which a Title IX tribunal a year earlier had declined to find him responsible. If approved by the judge presiding over Doe’s lawsuit against the university, it would be the largest known award in such a case.

A Title IX charge had been brought against Doe by another JMU student, “Jane Roe.” In August 2014, Roe filed a complaint under Title IX, which obligates schools receiving federal funding to investigate and take appropriate enforcement action against sexual harassment or sexual misconduct against students or staff. Her complaint alleged that Doe, who lived in the same dorm, several months earlier had intercourse with her when she was intoxicated. But after a campus tribunal hearing saw evidence casting doubt on Roe’s intoxication claim, Doe that December was found not responsible for sexual assault.

In a criminal court proceeding, the Fifth Amendment of the Constitution forbids double jeopardy. But as interpreted by the Obama Department of Education (DOE), Title IX allows an accuser to appeal a decision for the defendant. The appeal, heard by a board of three university professors, adopted many other much-criticized aspects of DOE’s procedures: the board forbade Doe to appear or examine witnesses, kept him from seeing some of the evidence, and did not itself examine witnesses about disputed evidence.

Even so, the board reversed the earlier verdict and imposed what it called a “new sanction,” handing Doe a five-year suspension, without explaining how it came to that decision, or finding Doe responsible for the alleged sexual misconduct. A senior JMU official affirmed the board’s reversal, without advance notice to Doe or any opportunity for him to offer input or explanation. Under the new sanction, after the five-year suspension, Doe would be permitted to apply for re-admission, if he completed an education and counseling program. Perhaps coincidentally, a change in JMU’s records retention policy caused the shredding of all records in Doe’s entire file, including the original hearing and the reversal on appeal.

With the help of a local law firm and the Center for Individual Rights, a Washington, D.C.-based non-profit group, in 2015 Doe brought a lawsuit (John Doe v. Alger) in federal court over the university’s handling of his case. Late the next year, the presiding judge ruled for Doe, finding JMU had violated Doe’s due-process rights, through allowing the double-jeopardy violation and otherwise, and ordered the school to expunge his record and reinstate him in the school.

Since Doe prevailed in the court case, he was eligible to have his attorneys’ fees and court costs reimbursed, but – as it had at nearly every point in the federal trial – JMU resisted. Finally, after about a year of hearings, magistrate judge Joel Hoppe determined JMU should pay Doe $849,231. His 46-page report notes at several points JMU made objections but failed to offer proof for them.

Unsurprisingly, the university has signaled it will likely object to the magistrate’s ruling. The judge presiding over Doe’s case should soon decide whether to accept the magistrate’s recommendation.

A non-profit, non-partisan group, the Foundation for Individual Rights in Education (FIRE), which advocates for free-speech and due process rights in higher education, last year surveyed 53 top-ranked U.S. colleges and universities and found major deficiencies in how those rights are protected in campus investigations of alleged sexual misconduct.

That leads to a related question: what rights and procedures do higher-education students view as desirable for American colleges and universities to provide in such cases? FIRE’s new study, Proceeding Accordingly: What Students Think about Due Process on Campus, released in mid-June, casts significant new light on that question.

To obtain objective data on the actual opinions and attitudes, FIRE used a grant from the John Templeton Foundation to hire YouGov, a well-respected, non-partisan polling and research firm, to design and conduct a nationwide survey for current undergraduates in two- or four-year U.S educational institutions.

During two weeks from late January to mid-February this year, about 2,450 students pulled from a large YouGov database took an average of eight minutes to complete an online opinion survey of their views on appropriate due process protections in one of three college investigative scenarios: a student alleged to have “broken a rule,” another accused of having “engaged in sexual misconduct,” or an underage student who supposedly “drank alcohol.”

After the student responses were weighted for gender, race and age, and the samples adjusted in line with a larger national dataset, the survey had nearly 750 responses for each scenario, and 2,225 responses overall. The survey responses for all respondents were calculated to have a margin of error of +/- 2.2% at the 95% confidence level, and +/-3.8% for each of the subgroups assessing one of the three scenarios.

The most striking finding of the survey: by overwhelming margins, students supported fundamental due process protections followed by few top colleges and discarded or discarded by the Department of Education’s regulations and “guidance” issued during the Obama administration on schools’ obligations under Title IX (which obligates recipients of federal funds to investigate and act against sexual harassment or sexual misconduct).

Until those commands were rescinded by the incoming Trump administration officials, colleges were directed to use a “preponderance of the evidence” standard in their disciplinary proceedings against students under Title IX. The much-criticized “Dear Colleague” letter circulated by the Department of Education in April 2011 tried to overcome any presumption of innocence for the accused, and strongly discouraged allowing defendants to cross-examine witnesses.

In sharp contrast, 80% of students responding to the new survey supported giving a student accused of sexual misconduct in a college disciplinary proceeding the presumption of innocence (as the student would receive in a criminal trial); only 14 of the top 53 colleges FIRE had earlier surveyed permitted that.

The student survey also showed broad support for giving accused students the right to present additional evidence at a disciplinary hearing (88%), receive written notice of allegations against them (86%), and having an advisor to assist them at a disciplinary hearing (77%). If the student is accused of a criminal offense, 80% believe a lawyer’s assistance should be allowed.

On Wall Street, at the Oscars or Grammy awards, even on Capitol Hill or at the White House, sexual harassment and sexual assault seem nearly omnipresent subjects. As a criminal defense lawyer, I’ve seen many cases – both in the settings of a criminal or juvenile court, and even more often in non-judicial settings such as school discipline or college Title IX hearings (which, can have serious repercussions for those accused, even as some of the procedural safeguards that would be a matter of course in a criminal court are often lacking, as I’ve described in a number of my earlier posts).

I’ve long admired the perceptive, skilled writing of Emily Yoffe, who for years wrote Slate’s “Dear Prudence” advice column, among many other things. Last year, she authored three lengthy analysis pieces for the Atlantic exploring several important controversies in how publicly-supported schools and colleges are interpreting and enforcing Title IX, which requires them to investigate and, where appropriate, take enforcement action against sexual misconduct affecting students or staff.

Much of what she’s covered have been the increasingly well-known problems in Title IX requirements imposed on schools under a 2011 directive issued by the Office of Civil Rights in Obama’s Department of Education, currently frozen while the new administration works on a replacement. But far less known is the subject discussed in an article Ms. Yoffe published last September 8: how federal enforcers and activists have tried to impose as orthodoxy a view on neurological and psychological responses to sexual assault that has virtually no scientific support.

Promoted in some federally-developed materials and embedded in Title IX training materials used on many campuses, this theory in essence claims the trauma of unwanted sexual conduct nearly always renders a victim “frozen,” powerless to resist, or even accurately remember what happened.

So, if there’s no sign of struggle, or reports are incoherent or inconsistent, far from giving rise to doubts about the claim, this view takes those flaws as confirmation, at least for campus officials making often-unskilled investigations. As a female Harvard Law professor observes, the theory is “100% aimed to convince” investigators to “believe complainants, precisely when they seem unreliable and incoherent.”

Yet the reflexively pro-accuser expectation that victims will be virtually catatonic has serious problems. There’s little solid evidence for it; what mind and memory researchers have learned from studying other high-stress traumatic events – such as terror attacks – is at odds with those claims. Few of the survivors of the Parkland, Florida mass shooting, for example, appear as clueless as the “frozen” theory would have us believe.

Ms. Yoffe also questions not just the accuracy, but also the wisdom, of promoting to young people the message that biological programming renders them helpless if confronted with unwanted sexual conduct, which will also certainly impair their mental abilities thereafter.

There’s another danger in schools automatically crediting whatever they hear in accusations, or deciding not to worry if accounts seem implausible. It’s important to deter and punish unwelcome sexual conduct, but if the only way to do that is to pre-judge every report without requiring some level of provable truth, such intrinsic unfairness may eventually cause fair-minded persons to withdraw from that effort.

Press reports say the Department of Education (DOE) is nearly ready to propose new regulations that would define more narrowly how schools and colleges must deal with sexual harassment and discrimination, scaling back the requirements outlined in regulatory guidance offered by the Obama administration in 2011 and again in 2014.

A front-page New York Times story on August 30 reported DOE was getting ready to propose Title IX rules (the Wall Street Journal added DOE plans to issue its proposal as soon as September), and will take public comment on its proposals. The Obama administration, despite its earlier policy guidance lacking the force of law, in a widely criticized “Dear Colleague” letter, threatened to cut off federal funds to schools which did not comply with its policy preferences.

In September last year, Secretary of Education Betsy DeVos rescinded DOE’s 2011 guidance, which critics faulted – among other grounds — for having been issued without DOE taking public comment on its positions. As currently drafted, DOE’s new proposal would make numerous changes in previous Title IX. They would:

  • Make colleges responsible for investigating and take appropriate actions against only formal complaints of sexual harassment or misconduct, which have been brought to an official with the authority to launch enforcement actions, about incidents that occurred on campus or at a campus-sponsored activity.
  • Permit schools to use voluntary mediation, and permit both complainants and accused to access evidence turned up by investigators, and seek evidence from, and cross-examine, each other. A school would also be permitted to provide “supportive measures” (such as counseling, increased security or changes in class schedules or housing assignments) to students who opt not to file a formal complaint.
  • Drop the earlier guidance’s insistence that campus disciplinary proceedings for Title IX complaints use the lower “preponderance of the evidence” standard, rather than a higher standard of “clear and convincing’ proof. Schools would be free to choose to use either standard of evidence
  • Make clear a school’s mistreatment of an accused student, not just of an accuser, could be found to be sex discrimination.
  • Narrow the definition of “sexual harassment” to unwelcome sex-based conduct “so severe, pervasive and objectively offensive” that it denies access to a school’s program or activity.
  • Allow schools to decide whether or not to provide an appeals process for disciplinary decisions. 

 The proposal is being welcomed by critics of Obama-era Title IX interpretations, including some universities which regarded them as overly restrictive and unduly burdensome, but assailed by victims’ advocates and many Democrats. It could be revised before being officially proposed.

Disciplinary Measures for Sexual Misconduct Charges Come Under Review

I have previously written about a state court decision striking down a public college’s disciplinary procedures as fundamentally flawed and unfair. More recently, two private colleges have made out-of-court settlements in increasingly common federal lawsuits brought against them by students disciplined or expelled over allegations of sexual misconduct.

Last December, Middlebury College in Vermont reached a settlement with a former student – the accused student and accuser were anonymized as John Doe and Jane Doe – who had been accused of sexual misconduct during the fall 2014 semester while studying overseas with the School for International Training (SIT). Middlebury’s student disciplinary policies extend to students’ behavior off-campus.

SIT investigated the complaint, made by a non-Middlebury student also in its program, but dismissed the complaint in December 2014. But even though Middlebury had allowed John Doe to register for the Spring 2015 semester, after his accuser contacted Middlebury and threatened to file a complaint against it with the Department Education, Middlebury launched its own disciplinary hearing, using an outside lawyer to investigate.

Expelled Without Due Process

The investigator, using a preponderance-of-the-evidence standard (recommended by controversial Department of Education guidelines), and her own evaluation of witness credibility and other evidence, found John Doe responsible for sexual misconduct. Without providing a hearing, the school expelled him in August.

The accused student, who consistently maintained innocence of the assault accusations, went to the federal court in Brattleboro, where he noted his exoneration in the SIT investigation and attacked Middlebury’s disciplinary procedures as inherently biased against men. He sought a court injunction ordering the school to let him continue his studies while the case continued, pointing out he would lose an $85,000 job offer if unable to graduate on schedule.

Federal Courts Intervene

Despite the school’s objections, the federal judge agreed the student would be irreparably harmed if not allowed to continue his education, and ordered him re-admitted. Months later, the school and student announced they had agreed to settle the lawsuit. The student will transfer to another school, but other terms of the settlement were undisclosed.

In another federal case last year, a judge in Virginia rebuffed efforts by Washington and Lee University to dismiss the lawsuit another John Doe had brought against it, claiming the school’s sexual misconduct disciplinary proceedings had violated federal education law by discriminating against him based on his sex.

The case involved allegations where a party to an apparently consensual sexual event later develops regrets and describes it as non-consensual. The accused student’s lawsuit alleges he met the accuser at an off-campus party in February, and she accompanied him to his dorm room, and had apparently consensual sex then and on another occasion. After he began seeing another student, however, the accuser broke off with him, and that summer filed a complaint claiming their first encounter had actually been a sexual assault. The school decided to expel him.

The accused student further alleged he was not allowed to have legal counsel during the school’s investigation, which he called rushed and badly managed. He further claimed his accuser was influenced by a lecture given by the university’s chief anti-sex discrimination official shortly before she filed her complaint, which allegedly told students regrets over a past sexual encounter show it was not truly consensual.

The presiding judge found the accused student’s claims raised sufficient doubt about the validity of the school’s disciplinary proceeding to let the case go forward, and set an April trial date. Then this February, a settlement in the case was announced, with no details released.

According to a new report by the American College of Trial Lawyers (ACTL), university students accused in campus hearings of sexual misconduct are “deprived of their fundamental fairness,” and procedures set by colleges and universities in response to a legal mandate enforced by the federal Department of Education’s Office of Civil Rights (OCR) are in need of serious improvement.

An invitation-only organization of distinguished trial advocates, ACTL assembled a five-member task force of prominent litigators to assess how well or poorly universities and colleges are responding to allegations of sexual violence. A mandate in a 1972 federal education gender-based bias law, known as Title IX, requires higher-education institutions to investigate and, when warranted, hold hearings in response to complaints of sexual harassment or violence by students or employees.

Especially during the Obama administration, OCR has issued regulations and interpretive guideline expanding how it believes schools should handle Title IX investigations. Institutions judged to be out of compliance with the mandate can be fined by OCR and risk having all their federal funds cut off, including federal-guaranteed scholarships. The ACTL report says the government’s significant enforcement powers can put academic administrators in a bind that amounts to a conflict of interest, in which they run the risk of serious financial penalties for providing better protection of student rights.

The ACTL report also notes some schools have adopted procedures for investigations and hearings that have drawn protest from faculty at affiliated law schools. At Harvard, more than two dozen law school teachers protested the university’s procedures for Title IX cases as lacking the “most basic elements of fairness and due process” and being “overwhelmingly stacked against the accused.”

Styled as a task force’s “white paper” on campus sexual assault investigations, the ACTL report notes state and federal courts are receiving growing numbers of lawsuits filed by students accused or investigated in Title IX proceedings, and some decisions question whether colleges and universities are providing adequate protection of individual constitutional rights.  The white paper’s authors maintain OCR’s regulations for colleges have acted to impose on U.S. higher education an “investigative and adjudicative system that does not ensure basic fairness for accused students.”

The white paper argues, to ensure basic fairness, students facing Title IX investigations or hearings should receive these seven elements: a process careful to maintain an appearance of impartiality, detailed information on charges and the right to counsel, the right to be accompanied and advised by counsel at all stages, timely access to evidence, some form of cross-examination of witnesses, written findings of fact of an investigation or hearing is over detailed enough to allow appellate review, and a “clear and convincing” standard of proof.

The last item, the standard of proof, is a much-criticized part of the OCR’s regulations. OCR currently requires colleges and universities to use the far lower “preponderance of the evidence” standard, essentially meaning all that is needed for the accused student to be held responsible is for the complainant to have any edge in credibility, no matter how slight — significantly short of what would be needed for a finding of “clear and convincing” evidence, and even further below the standard for criminal cases, a presumption of innocence and evidence beyond a reasonable doubt.