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The Department eventually rescinded that guidance after lawyers, civil libertarians, and law professors objected to its unbalanced favoritism of female accusers over male students who faced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.