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Secretary of Education Betsy DeVos made it official on September 7: her agency plans to change guidelines the Obama administration had set in 2011 for how schools should investigate and handle complaints of sexual misconduct.

In a speech delivered at George Mason University, the head of the U.S. Department of Education (DOE) said the Obama administration’s approach “wasn’t working” and had “failed too many students.” She also committed the agency to taking extensive public comment before coming up with a replacement policy (a step not taken before the guidelines were originally issued).

Title IX of the 1972 Amendment to the Education Act forbids various types of discrimination, including sex-based bias by schools and colleges receiving federal funds, including grants and federally-guaranteed scholarships.

The 2011 guidelines came in a “Dear Colleague” directive sent to schools by DOE civil rights enforcers. It reminded schools of their duty to investigate claims of sexual misconduct or harassment and to act if those offenses were found, pointedly noting schools which fail to do so can be denied all federal funds.

Those guidelines also set several controversial procedures that DOE said schools must follow or risk having federal funds cut off. For instance, the guidelines DeVos plans to revoke or revise set the standard of evidence for school disciplinary hearings at a “preponderance of the evidence” – a much lower standard than the “beyond a reasonable doubt” standard used by criminal courts. Also unlike criminal court proceedings, in campus hearings under Title IX guidelines, accusers have the right to appeal decisions in favor of an accused.

Other parts of the 2011 guidelines have been criticized as unworkably vague or biased against those accused of misconduct, including how broadly to define sexual misconduct. The DOE official who in the Trump administration will be most directly responsible for supervising Title IX enforcement made headlines a few months back by estimating 90% of sexual misconduct complaints colleges receive do not involve clear violence, but instead claim students had engaged in sexual activity while drunk, or had retroactively come to regret earlier, apparently consensual activity.

Some law professors and civil liberties advocates have also attacked the 2011 guidelines; more than two dozen Harvard law faculty members protested when that university attempted to impose the DOE guideline procedures on Harvard Law School (which eventually adopted somewhat different procedures).

A few courts have also found school disciplinary hearings to have violated the constitutional due-process rights of those accused of misconduct, and the number of legal challenges being brought by those accused in school hearings is rising. While Obama DOE officials and their backers have defended the current guidelines as needed to protect victims of sexual violence or harassment, DeVos assailed the Obama administration for having “weaponized” DOE civil rights enforcers “to work against schools and against students,” rather than working with schools to protect the interests of all students.

A policy change is not surprising. In August, when faced with a lawsuit in which several students and universities were challenging the DOE guidelines, the agency had asked for a 90-day delay in filing a reply, to allow time to consider how it might want to rework the guidelines.

A recent University of Virginia (UVA) law graduate’s new lawsuit attacks the procedural standards for dealing with sexual misconduct cases the Department of Education (DOE) mandates for the nation’s colleges and universities. If successful, the lawsuit could Title IX enforcers to back off their aggressive readings of the specific procedures colleges and universities must use for campus hearings on sexual misconduct.

Filed June 16 in the federal district court in Washington, D.C., the lawsuit identifies the plaintiff with the pseudonym John Doe. In March 2015, a few months before Doe was scheduled to graduate, a sexual assault complaint was filed against him by another law student, identified only as Jane Roe.

It alleged that one evening in August 2013, about a year and a half earlier, Doe had engaged in sexual activity with Roe while she was so inebriated as to be incapable to consent; for his part, Doe denied Roe had seemed intoxicated, much less incapacitated.

Under Title IX of the Education Act Amendments, colleges and universities receiving federal funds are required to investigate and resolve complaints of sex- and gender-related discrimination (including sexual harassment or violence) by employees or students. Failure to do so can bring a federal funds cut-off for the school.

Soon Doe found himself in limbo: the school withheld his diploma until the complaint was resolved (which took almost a year and cost Doe the law firm job he had lined up for after graduation). His campus hearing in January 2016, presided over by a retired Pennsylvania Supreme Court justice, decided that, under the DOE-mandated “preponderance of the evidence” standard, Roe’s arguments held a “slight” advantage over Doe’s defense. Doe was ordered to months of counseling and received a lifetime ban from UVA locations and events.

In the new lawsuit, supported by the campus rights non-profit group Foundation for Individual Rights in Education (FIRE), the plaintiff sued the Department of Education and its Title IX enforcement arm, the Office of Civil Rights (OCR), and the top official at each agency. The suit charges OCR violated the Administrative Procedure Act, which sets fundamental procedures for government agencies, in several ways.

First, Doe’s suit targets Obama administration changes, first issued in an April 4, 2011 “Dear Colleague” letter sent by OCR to campus Title IX coordinators. There, the agency for the first time — a position since reiterated in “Questions and Answers” guidance ORC issued in 2014 — insisted campus hearings use the “preponderance of the evidence” standard in judging sexual misconduct cases. The agency has also chastised schools for using more stringent evidentiary standards, such as demanding claimants make a “clear and convincing” case, or prove a complaint beyond a reasonable doubt.

Opponents of the new stance argue it makes it far easier for a college or complaining student to win a case, but reduces the due-process rights of accused students. (Even the judge hearing Doe’s case called “preponderance of the evidence” the weakest evidentiary standard, the lawsuit notes.)

Further, the 2011 guidance letter departed from DOE’s previous stance and so amounted to important rulemaking, but failed to use APA-required notice-and-comment rulemaking method. The lawsuit also charges DOE’s proffered explanations for mandating a minimal evidentiary standard are so baseless as to be arbitrary and capricious.

Finally, it portrays the plaintiff as the victim of DOE’s and OCR’s well-intentioned but poorly targeted campaign against campus misconduct that, by combining “zeal and hubris,” turns the plaintiff and other defendants in weakly-supported cases into collateral damage, effectively denying their Title IX rights.

Remember when government agencies proclaimed their devotion to American values like independence and the right to speak your mind freely? Ah, those were the days… but no sense living in the past. Nowadays, you’re far more likely to find federal agencies trying to force U.S. educators into combatting outbreaks of outmoded ideas like the First Amendment’s guarantee of free speech on campus.

The Censorship of Federal Education Funding

Impossible, you say? Apparently, you haven’t been keeping up with the thinking at the Office of Civil Rights at the U.S. Department of Education, which is responsible for enforcing Title IX, a law aimed at fighting sex discrimination in education. The agency frequently indulges its penchant for issuing “guidelines” telling educators what they need to do towards that aim. If DOE finds a school not towing the line on Title IX, it can cut off federal funds (a very effective way to gain educators’ attention).

Remarkably, the DOE anti-bias squad now apparently feels its mission includes forcing college administrators to regulate what students can say to one another. And, DOE’s wily bureaucrats aren’t undertaking that mission all by themselves: they’ve enlisted the help of the Department of Justice.

Free Speech On Campus Under Fire

To aid DOE in its campaign to keep higher education bias-free, even if that requires trampling constitutional free-speech rights, DOJ recently sent the University of New Mexico a 37-page letter from its top educational civil rights official and the head of its New Mexico office.

Claiming authority under both Title IX and Title IV of the same education law, which bars sex, race, religion, color, and national origin discrimination against students in public schools, the bureaucrats demanded the school label as sexual harassment all “unwelcome” sexual conduct, with the school encouraging students to file complaints, which the school would then dutifully investigate.

You would be wrong, however, to assume the demand was limited to physical conduct. In DOE and DOJ’s expansive reading, the university must police not just that, but also what the feds call “verbal conduct” – what civilians might call speech.

Note that exactly what kind of speech the university must control, according to DOE-DOJ, lacks any objective standard. It’s not what would offend the reasonable student or administrator. Instead, the new gold standard for university action is whether a remark, invitation or argument is “unwelcome” to a listener.

Are The Feds Going Too Far?

Remember those old ideas about college being a place where students have freedom to explore ideas, and the First Amendment protecting even controversial or provocative utterances as long as they don’t pose imminent danger (like shouting “fire” in a crowded theater)? Forget that outdated stuff, the feds are now telling schools, “your job is to police and prosecute anything that gives offense.”

In effect, they’re demanding schools act as speech police ensuring no one has his or her tender sensibilities offended, even if that means ignoring long-established rights to speak one’s mind or talk with other students. Without first having to clear it with Big Brother. Hard to see what could go wrong with that.

New York Universities Must Report Sex Offenses in College Transcripts

Virginia and New York in 2015 became the first states to require academic transcripts from their colleges to show whether a student has been disciplined for sexual assault, but other states have considered following suit, and some members of Congress support a federal law to the same end.

Advocates of this mandate argue it’ll protect against problem students transferring from one college to another state, where they may re-offend. They point to criminals like Jesse Matthew, a former student at a college in Virginia, who after being accused of rape transferred to another in-state college, where he was soon accused of a similar offense; years after dropping out, he confessed to the rape-murders of two coeds from different Virginia colleges (who wouldn’t have been helped by an old warning on Matthew’s transcript).

Similar bills have been introduced in a number of states, including California (where Gov. Jerry Brown vetoed a bill) and Maryland (where it died in committee). But with the support of groups like the National Association for Women, it’s likely to reappear.

Late last year, a similar bill was introduced in the U.S. House of Representatives. The “Safe Transfer Act,” (H.R. 6523), offered by Rep. Jackie Speier (D-CA) and a half-dozen co-sponsors, would cut off federal funds, including federally-backed student loans, to any college which doesn’t note on a student’s transcript: (a) for one year, any pending campus disciplinary proceeding accusing the student of sexual misconduct, or (b) for five years, any final finding of responsibility on such a charge.

Is There a Justification for Including Accusations of Sex Offenses in College Transcripts?

Rep. Speier argued that, by noting academic offenses like cheating on school transcripts, but not similarly recording incidents of sexual violence on campus, schools were treating the former more seriously than the latter. Her bill would explicitly provide federal educational privacy law allows the required disclosures. It also requires accused students to have been notified of the disclosure and given an opportunity to offer a statement of explanation to accompany the transcript (steps like notice and a chance to be heard may seem like obvious parts of procedural fairness, but in fact are frequently denied accused students in campus hearings on such charges).

But there are some serious problems with these proposals. First and foremost, there are serious problems in the way most colleges go about inquiries and disciplinary procedures in such cases. It’s no exaggeration to say students charged by campus officials are bringing — and winning — a growing number of lawsuits over shoddy investigations and seriously unbalanced procedures falling far short of due process.

The Foundation for Individual Rights in Education (FIRE), a nonpartisan non-profit organization whose fine work I know, first-hand, points out some other factors at work: many schools’ reluctance to seek assistance from law enforcement agencies, which have expertise and tools educators lack, and the Department of Education’s wrong-headed insistence that school disciplinary hearings use the lowest standard of proof, a preponderance of evidence, which would be rejected out of hand by any criminal court in the land.

Rather than ignoring grave flaws in many campus hearings, states should forego the showy but ineffective tactic of attaching “scarlet letter” warnings to transcripts — and instead work to build into campus disciplinary proceedings the fundamental fairness that’s now too often lacking.

The National Association of College and University Attorneys (NACUA) stirred controversy last year by publishing advice from a prominent law firm on ways colleges and universities can protect themselves against increasingly numerous and complex lawsuits filed by students involved in campus sexual misconduct hearings. The 18-page article, “Between a Rock and a Hard Place: A Discussion of Issues that Frequently Arise in Sexual Misconduct-Related Litigation against Colleges and Universities,” was written by five attorneys at the Richmond-based McGuireWoods law firm and published as part of the association’s NACUA Notes series of topical papers giving brief summaries of legal issues.

Risks to Schools of Conducting Sexual Misconduct-Related Litigation

After admitting that the growing number of lawsuits brought against colleges and universities, both by students making accusations of sexual misconduct and by students targeted by such allegations, represents a “legal and political minefield,” the article sketched some frequently litigated issues – on the one hand, accusations schools had discouraged students from filing complaints, failed to investigate adequately or impose appropriate punishments, or complaints by accused students that school disciplinary proceedings or sanctions were unwarranted or unfair. (Since 2014, the article notes, so-called “reverse Title IX” lawsuits by accused students challenging school disciplinary proceedings have outnumbered lawsuits by students claiming a school failed to take their accusations seriously.

Guidance from the federal Department of Education’s Office of Civil Rights, which can investigate and enforce sex-discrimination complaints under Title IX against federally-assisted schools, may not provide a reliable gauge for how schools should evaluate their potential Title IX liability in private litigation, the article further cautions. So they advise schools to eye every sexual misconduct allegation as potentially bringing lawsuits their way. It also encourages school counsel to engage in early planning and strategic thinking to place the institution in the best possible position if sued either by the claimed student victim of harassment or assault, or by the alleged student perpetrator.

The most controversial element of the advice came in its discussion of document preservation. While it will be important for schools’ ability to defend against litigation to have clear and well-documented policies for complying with Title IX requirements and spelling out procedures for dealing with student complaints, the advice paper also urged senior administrators and general counsel carefully to consider destroying early “preliminary and personal documents,” possibly including emails, pre-investigation staff notes, notes made during disciplinary hearings, and report drafts – which, it notes, could “prove very useful” to attorneys who may later sue the school – and instead keep just a “master list” of official proceedings, completed reports, and outcome documents offering a “single, consistent record” free of contradictions that might be found in earlier e-mails, notes and documents.

That suggestion drew fire from some as a ploy likely to be both unethical and ineffective. One commenter likened the suggestion to advising police they should hide evidence suggesting they had arrested the wrong suspect for a crime. Others noted the recommended document purge might run counter to retention policies, particularly at publicly-funded schools, or draw sanctions if the case went before a judge. Eventually, NACUA noted the policy was merely a suggestion by the article’s authors, and not endorsed by the association.

Proponents of affirmative consent (discussed earlier here) argue that, to avoid sexual assault charges, you should have to prove your sexual partner gave clear, conscious and voluntary agreement to engage in sexual activity – and not just at the outset, but before each new action.

While this may strike you as closer to a protracted session of hard bargaining over a labor contract, or a bizarre game of Twenty Questions, than to ordinary romantic behavior, a similar mandate is part of so-called “yes means yes” conduct codes for college students in California, Hawaii, Illinois, New York, and, as of June, Connecticut.

Affirmative Consent versus “No Means No”

Advocates say it’s time for affirmative consent to replace the more familiar “no means no” standard – which holds that the activity must stop when a would-be partner indicates, by word or gesture, a sexual approach is unwanted. For affirmative consent advocates, that’s too outmoded and weak, since a partner might be too inebriated, shy or conflicted to express non-consent. Instead, they argue, society needs to make all sex acts conditional upon showing that each step in the sexual interaction was specifically approved in advance.

This school of thought has largely been confined to college campuses and other hotbeds of activism, but some advocates have sought to impose the affirmative consent requirement not just on the college crowd, but on everyone, everywhere. That was at the heart of the proposal before the American Law Institute (ALI), an elite legal advisory committee that drafts model legislation frequently adopted by Congress and state legislatures. In a project started in 2012, an ALI panel rewriting the Model Penal Code proposed switching the “consent” defense to a rape charge, to “affirmative consent.” The debate came to a head on May 17, at ALI’s annual meeting in Washington, D.C.

Affirmative Consent – Redacted

Unfortunately for ideologues and activists hoping to make affirmative consent the only way to justify sexual activities, but fortunately for those who believe laws should offer realistic guidance to acceptable conduct, the group voted down the proposed change, by voice vote.

Even before the vote, about 120 ALI members had sent a letter pointing out the affirmative consent standard’s plentiful defects. Foremost among these: it would reverse the burden of proof in sexual assault cases, forcing defendants to prove the acts were consensual in order to avoid guilt, rather than having prosecutors prove violations. And, as a practical issue, exactly how might you go about proving your amorous activities had in fact been welcome – eyewitnesses presumably lacking. I’m thinking legal waivers recited at appropriate moments.

The main advocates of the change probably did little to help their case by conceding they wanted to criminalize even “seemingly innocuous” behavior, in order to shake up “social expectations” and norms.

This article is part 5 in the series Yes Means Yes and Students' Due Process Rights

Some colleges and universities have for years come under fire, from students and critics outside the campus accusing them of having done little to address or prevent instances of sexual attacks against students– or perhaps even to have covered them up. A partial response was a federal law requiring campuses to report violent crimes; another was the federal government’s first-ever release last year naming dozens of schools where students have complained of administrative inaction.

Title IX, part of a 1972 educational law aimed at fighting sex discrimination in higher education, gives Department of Education officials powerful tools – including blocking federal funds – to recalcitrant schools. In recent years, those same officials have been drawing up new procedures they think schools should follow in handling such complaints.

Take the case of Harvard, which in July 2014 unveiled its new university-wide disciplinary procedures for handling complaints of sex assault or harassment. When Harvard Law faculty saw the new policy (which the law school had not been involved in developing), 28 of them fired off a joint letter of protest.

The nicest thing they had to say about the new policy was it would “do more harm than good.” Specifically, the law faculty protestors charged the new procedures:

  • “lack the most basic elements of fairness and due process”
  • made subjects for investigation conduct not covered by sex discrimination and harassment laws
  • were “overwhelmingly stacked against the accused.”

Specifically, the Harvard law faculty faulted the university’s newly-minted procedures for handling sex misconduct complaints for not adequately providing accused students with an opportunity to:

  • learn the specifics of charges against them
  • question witnesses
  • present a defense.

Small wonder the law faculty protesters termed the procedure “starkly one-sided” against students accused of misconduct.

Recall that the Department of Education is urging colleges to adopt a “preponderance of the evidence” standard for campus disciplinary hearings, rather than anything approaching the “beyond a reasonable doubt” standard for criminal defendants. Nor is that the only bad idea gaining steam in activist and government circles.

In April last year, a White House task force studying campus sexual assaults issued its first report, and included in its recommendations the suggestion that colleges consider adopting a “single investigator” model who would be responsible not just for investigating student sex assault and harassment complaints, but also presenting the university case and handling any appeals. That was also part of the much-criticized Harvard procedures.

Most college administrators, if they are candid, would admit they have little or no expertise in running criminal investigations or conducting hearings into serious student misconduct. To concentrate such power in a single, perhaps ill-prepared college administrator, is nearly guaranteed to mean bad cases going forward.

Federal officials working on preventing campus sexual assaults also display numerous blind spots. To illustrate: the report of the White House task force makes no mention of alcohol, just as Department of Justice grants for studies of campus attacks have excluded that topic for well over a decade.

Activists insist mentioning alcohol as a risk factor stigmatizes assault victims, but a recent survey found alcohol was a factor in about two-thirds of campus assaults – why isn’t that relevant to mention if you really want to address the problem?

Making matters worse, many schools have also decided to forbid accused students from having legal assistance at such hearings. In the San Diego case, the accused student was allowed to bring a lawyer to the disciplinary hearing, — but the lawyer was not allowed to speak, much less ask questions of witnesses.

North Carolina adopted a law a few months ago, the nation’s first of its type, which guarantees that students in state schools who hire a lawyer or a non-lawyer advocate will retain the right to have their representative accompany them and participate fully in almost all campus disciplinary hearings.

Of course, schools need to protect the rights of victims of campus sexual assaults. But, given the potential stakes and the damage a wrongful finding of responsibility could bring to an accused student, the answer is not to make campus disciplinary hearings so one-sided that an accused student is deprived of the right to a fair hearing, the opportunity to present a defense, and the right to be judged by reasonable standards. Any student being interrogated or accused in a campus hearing over potentially serious misconduct should not be forced to respond without full access to experienced legal counsel.

This article is part 4 in the series Yes Means Yes and Students' Due Process Rights

In the previous articles in this series, I noted that advocates for “yes means yes” and similar measures billed as fighting college sexual assaults frequently make exaggerated claims on how frequent such offenses are. But if you’re looking for workable solutions, it’s important not to overstate the real dimensions of the problem.

Here’s one example of an unjustified overstatement of the frequency of campus sexual assaults: Rape and Sexual Assault: A Renewed Call to Action, a report released in January 2014 by the White House Council on Women and Girls. It advanced the claim, repeated in a presidential speech, that one in five women is sexually assaulted while attending college. The first report of a new task force the White House set up later in the year to fight rape and sexual assault in schools also echoed the bogus claim. The lead sponsor of California’s “yes means yes” law similarly invoked that claim.

The original source of that claim is a 2007 survey by a Justice Department consultant. If you delve into that report, as did a well-researched Slate article by Emily Yoffe, you’ll find less-than-impressive support. The consultant’s survey took website responses to its questionnaire from fewer than 5,500 women at two state colleges, a very insignificant share of the nation’s 12 million female college students.

Another study done for the Justice Department, dating from 2000, is also often cited for an even more horrific claim: that a quarter of all female college students will experience sexual assault. There’s even an activist group, One in Four, deriving its name from the unsupported claim.

That study actually found on average in any year 1.7% of its respondents reported an actual sexual assault, and another 1.1% said they had experienced an attempted assault. Those numbers came in response to a survey done in the spring, so to adjust for the full year, the study’s authors nearly doubled the combined 2.8% figure to 5%. They next increased the typical four-year span for college to five years, and reached the more attention-getting, but ill-supported, 25% claim.

In fact, broader, and both more recent and representative, statistics from the federal government’s National Crime Victimization Survey cast serious doubt on such claims. Data sampled from that nationwide survey between 1995 and 2011 gave estimates that actual, attempted or threatened sexual assaults occurred at a rate of 0.8% for women between the ages of 18 and 24 – among those not in college. For women in the same age group attending college, the estimated annual rate was 0.6%.

Of course, every claim of having been assaulted deserves a complete investigation and, where warranted, prosecution. But, as Rolling Stone has learned to its chagrin, not every such claim is entitled to automatic, uncritical belief.

Further, even a problem as large as incorrectly claimed would not justify ignoring basic due process rights for accused students, such as the right to a fair hearing, rather than a panel of university officials out of their depth, and with a presumption of innocence, not of guilt.

The concluding article in this series will examine why campus are having so much trouble figuring out how to deal with this issue, more ways their procedures can harm innocent students, and some better ways to address what is a real, if overstated, problem.

This article is part 3 in the series Yes Means Yes and Students' Due Process Rights

This series has previously identified problematic elements of college codes of conduct using a new “yes means yes” standard in judging alleged sexual misconduct, and described one recent California case (Doe v. Regents of the University of California, San Diego) – there are others, with many more likely in store – where a state judge voided a college disciplinary proceeding as fundamentally unfair and violating a student’s due process rights.

The California case highlighted a fairly large number of ways college disciplinary proceedings involving sexual misconduct claims can violate students’ basic rights to a fair hearing.  These are rights they would have in a criminal court hearing: to be represented by counsel, examine evidence, cross-examine witnesses and invoke rights against self-incrimination and against a longer sentence in retaliation for filing an appeal.

Unfortunately, that doesn’t exhaust the defects of college disciplinary hearings. New “yes means yes” laws, like those adopted in California and New York, have other serious defects and can have far-reaching repercussions. To review briefly, the “yes means yes” standard goes beyond the well-established “no means no” standard, which requires one participant to stop a sexual act to which another participant objects.

Instead, “yes means yes” requires a participant to receive affirmative approval before beginning any sexual act. Without express, voluntary, conscious, mutual consent in advance, any type of sexual conduct can become serious misbehavior, even if it would otherwise be student explorations of no concern to the school and state.

One fundamental problem with “yes means yes” is its absence of clarity on how the required manifestation of consent is supposed to occur. Unlike aircraft pilots meticulously working down a pre-flight takeoff checklist on their clipboards, college students in the process of hooking up are unlikely, even if completely sober, to be able to document exactly who said what and responded what to whom when.

I’m not suggesting the Department of Education should issue clarifying regulations (as you’ll see below, they’ve done quite enough harm already), only that such a vague standard can leave everyone in doubt and leave some students, perhaps long after the fact, in deep trouble. Plus, unlike the normal presumption of innocence, “yes means yes” essentially presumes students engaging in sexual acts are guilty of sexual assault, unless they can establish their innocence by proving they received affirmative consent. On either count, vague standards or the wrong burden of proof, “yes means yes” may well be unconstitutional.

The DOE for several years has opined on how schools should handle sexual misconduct complaints. In fact, it mandates that hearings into sexual misconduct complaints base their decisions on a “preponderance of the evidence” standard of proof. A criminal court, of course, has a much higher requirement: proof of guilt beyond a reasonable doubt.

DOE advises schools they’re under no duty to tell local law enforcement about complaints they’ve received of students’ clearly criminal sexual misconduct, but justifies its far lower standard of proof for student hearings on the grounds schools can’t send offenders to jail. But that doesn’t mean a college disciplinary hearing cannot bring serious, long-lasting consequences.

Even beyond school discipline up to and including expulsion, a school hearing’s decision that a student engaged in sexual misconduct not only makes it unlikely the student can continue his or her education anywhere, but could also hurt chances of admission to many professions and employment prospects generally.

One member of the Washington, D.C. City Council recently proposed legislation to require local colleges to add permanent and prominent notices on transcripts of students when a school hearing found they had committed a sex offense, or withdrawn from school before the completion of hearings on such charges. It’s a fairly safe bet that won’t be the end of such proposals.

This article is part 2 in the series Yes Means Yes and Students' Due Process Rights

In an earlier article I summarized the potential unfairness to college students of school disciplinary hearings involving allegations of unwelcome sexual conduct in states — including New York — which have enacted laws requiring colleges and other post-secondary schools based there to use a “yes means yes” standard.

This article will look at a recent court case from California, the first “yes means yes” state, which illustrates problems raised in the earlier article are in fact real, not merely hypothetical or the fevered imaginings of persons lacking all sensitivity to the real, but how the violation of due process rights, the lack of adequate evidence, and using unfair procedures can cause great harm to the accused.

The case of Doe v. Regents of the University of California, San Diego has its beginnings early in January 2014, when two UCSD undergraduates, referred to only by the pseudonyms John Doe and Jane Roe, met; according to the later testimony of both, they soon began a relationship that include consensual sex acts. But the affair soon ended, and in Jane Roe filed a complaint with the university, claiming Doe on three occasions performed intimate acts to which she had not consented. Doe admitted sexual activity, but denied any wrongdoing.

Roe spoke with campus investigators, who passed their report on to school disciplinary officials enforcing the campus code of conduct. The school’s investigation found insufficient evidence for two of the alleged offenses, but found grounds for holding a hearing on the third charge, involving an intimate touching incident that allegedly occurred in February. The December hearing before a panel of two administrators (neither of them lawyers) and one graduate student, applying California’s new “yes means yes” law, decided Doe had sexually assaulted Roe.

On July 10 this year, a state judge in San Diego County handed down a brief but biting six-page decision, after Doe challenged the school tribunal’s ruling. Judge Joel Pressman voided the school’s ruling and sanctions as violating Doe’s due process rights, lacking adequate evidence, and using unfair procedures.

In what ways? More than you would think could fit into a six-page decision. To start with, the school’s procedures denied Doe the right to question Roe directly; instead he had to submit written questions to the school official chairing the hearing, who decided which to rephrase or omit (and who only allowed nine of the 32 he had submitted).

The rejected questions dealt with issues germane to Roe’s state of mind, such as her continued relationship with Doe, and texts she sent him, after the alleged assault. The judge noted the hearing chair screened none of the questions submitted by the university, which essentially acted as the prosecution.

Judge Pressman also questioned the hearing’s use of a barrier blocking any visual contact between Doe and Roe, and perhaps (the record is unclear) also screening the disciplinary panel’s view of Roe. Not only did the judge find it unneeded, but if the panel could not see Roe, it could not use her demeanor and non-verbal cues in assessing her credibility.

Further, the judge faulted the hearing for: allowing into evidence reports by university investigators without making them available for questions (in a regular court, it would be inadmissible hearsay), denying Doe access to statements Roe and 14 others made to investigators, and letting the university raise issues in the investigators’ report only in its closing argument, when Doe could not respond.

Judge Pressman also found other unfair elements of the hearing. While an accused in a criminal trial has the constitutional right to remain silent, the school panel pointed to Doe’s refusal to answer some questions at the hearing as helping establish his guilt. The judge also noted the school’s increasing sanctions against Doe (raising an initial suspension for one academic quarter to a full year, after he opted to appeal it) smacked of unlawful retaliation for asserting his rights.

This case illustrates well the power the school has over all facets of the investigation and prosecution against the student.