In the last few years, college age men wrongfully accused of sexual misconduct have brought over 200 lawsuits to clear their names. These suits have shown that accused parties are being denied their right to due process by school panels afraid to lose Title IX funding.
Title IX was originally intended to address discrimination against women in education and athletics. Schools that did not strictly comply would suffer the loss of federal financial assistance. Title IX ushered in a new era for higher education, irrevocably linking dollars to discrimination. But where there is an accusation of discrimination, the accused must also be permitted due process. Indeed, every woman and man in our society is entitled to due process under the law. The 14th amendment of our constitution promises it and our legal system depends on it.
Shockingly, sexual discrimination and sexual assault cases on college campuses have become the exception to due process, where accused parties can and are being denied their right to a fair hearing. Thankfully, students are fighting back—and winning. In the last several years, numerous lawsuits have successfully exposed schools railroading accused parties by denying their right to present a defense before an impartial decision maker. Considering the grave and potentially life-changing penalties for acts of sexual discrimination and sexual violence, denying accused parties their basic constitutional right to a fair guilt-determining process is dangerous and wrong.
In 2011, Title IX procedures being used by schools to prevent and combat sexual discrimination forever changed with one little letter. The now infamous “Dear Colleague” letter was addressed to all campus administrators (“colleagues”) and came from the Office of Civil Rights (OCR). The letter focused solely on the victim (as opposed to the accused), addressing accusations, investigators, compliance officers, and regulated disciplinary proceedings. The rights of the accused, on the other hand, were addressed in two sentences, which merely advised schools to give the accused due process only when it does not interfere with Title IX funding.
Although the letter called for “equitable grievance procedures,” it did not require an actual hearing. Furthermore, it asserted that legal counsel for the accused could be denied and discouraged the accused’s questioning and cross-examination of witnesses.
Equally distressing, these “equitable grievance procedures” need only adhere to a “preponderance of the evidence” standard of proof to determine guilt. The preponderance standard uses the law’s lowest standard of certainty, a mere 50.01 percent certainty of guilt; accordingly, whoever decides the case only needs to be 50.1 sure the accused is guilty. Compare that to the “beyond a reasonable doubt” standard, used in a criminal case, in which the judge or jury must be virtually certain of guilt. The discrepancy between what schools and courts are using to determine guilt has drawn national attention. For example, the current Secretary of Education, Betsy DeVos, announced her dissatisfaction with the preponderance standard and her intent to install the more stringent “clear and convincing standard.”
The OCR’s letter acknowledged that criminal proceedings may occur in parallel with school disciplinary proceedings and neither can be determinative of the other, thereby creating an enormous dilemma for the accused. Now, anything said in the school proceeding can be used against him in a criminal case. Imagine your entire future on the line, would you sacrifice the 5th Amendment privilege you normally have in a criminal prosecution? Under ordinary circumstances, no defense attorney would allow his client to make a report to the prosecutor when charges have been initiated or are pending. Yet to remain silent in a school proceeding is virtually an admission of guilt. This particular issue is one that I wrestle with in every case, even when there is only minimal criminal exposure.
OCR’s letter met with considerable criticism from educators, legal academics, and wrongfully accused students for replacing legal due process with a non-legal procedure patently stacked against accused students. Critics have called out the danger of denying due process at every step of the process, including failing to give notice of charges with specificity; failing to provide full disclosure of evidence (even and especially exculpatory evidence); allowing hearsay evidence; and generally ignoring all rules of evidence designed to protect the accused. These kangaroo courts either partially block or completely exclude lawyers for the accused. Cross-examination of anyone is either limited or disallowed completely. Incredibly, witnesses are not placed under oath and face no penalties for lying.
With apparent disregard for fair proceedings, schools are allowed to appoint their own panel to oversee the hearing, which consists of Title IX coordinators and school administrators who do not want to lose funding. In many of these cases, the investigator is also the prosecutor (so much for avoiding conflict of interest). Decisions are usually given in the form of an order, without a transparent, detailed opinion.
Simply put, these life-altering decisions are made by an amateur panel using the preponderance standard, where finding a guilty“verdict” on rape charges is as nonchalant as a coin toss. For young people with their lives in front of them, suspension or expulsion can be devastating—in fact, they may never recover. With the stigma of expulsion, it is unlikely another school will accept them. Job prospects become similarly bleak.
Since OCR sent their controversial letter, the court system has heard a rising crescendo of civil rights and breach of contract lawsuits brought by wrongfully accused students. According to at least one database, 1 out of 3 innocent students have been found guilty. Given the lack of due process, the actual amount of wrongful decisions is likely higher. OneMaryland based group that exposes “rape hoax,” found that between 1993-2015, approximately 70 percent of lawsuits brought against colleges by wrongfully accused young men were decided in their favor by verdicts or outright settlements.
For young men filling lawsuits, it’s a chance to clear their name, get reinstatement at school, and collect monetary damages. Although courts have been clear they are not interested in retrying these cases, they have also been clear that due process is not up for debate, and that unfair proceedings will not be tolerated. Rather than employing hard and fast rules, the courts have evaluated these claims case-by-case, scrutinizing whether the school used due process or rushed to judgment. As stated by counsel for the National Center for Higher Education Risk Management, “Now judges are digging deeper. They are losing trust in the good faith that colleges had when addressing these situations. And that’s a very dangerous position for colleges.”
A recent case against the University of California at San Diego illustrates the common problems with these hearings. In that case, a trial court judge reversed the suspension of a male student who allegedly assaulted a female student. The student accused the University of violating his due process rights by not allowing him to present witnesses and evidence, and by denying him the right to confront witnesses. During the hearing the tribunal placed the accuser behind a barrier where her cross-examination was limited to 9 of 32 questions submitted by the acccused. No follow up questions were allowed.
Moreover, the school panel took away his right to review and refute essential evidence including access to 14 witness statements and two statements from the accuser. The panel relied on an investigator’s report incorporating these statements yet gave the accused no opportunity to review the report and/or question the investigator at the hearing. The court used the higher standard of “substantial evidence” to reverse the school’s decision. It also found that the hearing was “unfair and that the evidence did not support the findings.” In its’ decision, the court criticized the school panel for refusing to consider exculpatory evidence in which the accuser“admitted that she voluntarily continued consensual [relations] later that same day.” From the decision: “this did not show non-consensual behavior, but could show regret of her behavior.” The court also made a pointed comment about due process, writing: “Due process requires that a hearing … be a real one, not a sham or a pretense.”
In The Campus Rape Frenzy: The Attack on Due Process of American’s Universities, authors Johnson and Taylor illustrate the secretive ways schools operate to avoid adverse publicity, including sealing sexual misconduct disciplinary hearing transcripts and investigative files so the public will never see them.
Another recent case against Amherst College shows just how flagrantly schools are operating above the law when it comes to due process. The lawsuit arose from a sexual assault complaint filed by an Amherst student 18 months after the date of the alleged assault. The college conducted a disciplinary hearing before three administrators and expelled the student. Since the school hearing failed to consider or disclose key exculpatory evidence, the expelled student sued Amherst in federal court. The case focused on a series of texts sent by the accuser admitting that she initiated the sexual contact with the accused (who just happened to be her roommate’s boyfriend), and now needed a “good lie” to cover up her mistake. During the school hearing, she actually admitted that she sent the texts. Incredibly, the panel did not find this important enough to mention to the accused party. When the accused did eventually uncover the texts on his own, the school panel said it was too late and upheld his expulsion. In his federal suit, he claimed that Amherst violated his Title IX rights. The presiding judge denied a Motion to Dismiss and expressed deep skepticism about Amherst’s conduct. The case was settled thereafter.
Amherst’s procedures typify how colleges and universities are handling student sexual misconduct cases. Using the preponderance standard and in a rush to convict, Amherst denied the accused and his lawyer the right to cross-examine the accuser while failing to furnish the necessary and available evidence to do so. The investigation and hearing were conducted so quickly that the exculpatory text messages came out after the case was decided. Operating in its’ above-the-law bubble, Amherst shifted the burden of proof to the accused (instead of the accuser) and forced him to prove his innocence without according him due process. He never had a fighting chance.
The trend among colleges to avoid losing Title IX funding by denying accused students their basic right to due process is untenable, undemocratic, and unconstitutional. Students merely accused of misconduct are trapped in a hostile environment where scales are openly tilted in favor of accusers. But where colleges are unwilling or unable to respect the rights of all parties, the courts are ready and able to provide justice. Wrongfully accused students can and must exercise the right to seek remedy in our court system. We have the best judicial system in the world. Take advantage of it.