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Restoring the Rights of the Accused

False accusations of rape are no joke. Just ask the Duke lacrosse team or the University of Virginia fraternity brothers who were smeared in Rolling Stone magazine. Such high-profile travesties of justice are the tip of an iceberg that has now been documented in detail by KC Johnson and Stuart Taylor, Jr.

The atmosphere on many American campuses is thick with intimidation of anyone who might dissent from a poisonous version of feminist orthodoxy. Strident accusations and demands would not have been enough, though, without widespread acquiescence in politically driven lies about sexual assault. College bureaucrats, the media, and cowardly politicians, including some very prominent Republicans, have all contributed to a culture in which simple procedural fairness is treated as though it were part of a “war on women.” This problem will not be solved with a stroke of anyone’s pen. But some significant steps can be taken very expeditiously by the Trump administration.

President Obama’s Department of Education has coerced the nation’s colleges and universities to set up kangaroo courts in which any defendants who may have been falsely accused will find it difficult to defend themselves. This is supposedly a response to an epidemic of rapes on college campuses, but that epidemic is a myth created by feminist ideologues. The Trump administration can reverse the worst of the Obama administration’s policies, and it can do so immediately.

The Title IX amendments to the 1964 Civil Rights Act[1] require schools that receive federal funding to refrain from discriminating on the basis of sex. The Supreme Court’s decision in the 1999 case of Davis v. Monroe County Board of Education[2] held that peer-on-peer sexual harassment is covered by the ban on discrimination when it is severe or pervasive enough to create a hostile environment.

Title IX is enforced by the Department of Education’s Office of Civil Rights, and schools do whatever OCR tells them to do. In one very unusual case, Tufts University tried refusing to comply with OCR’s demands, but the school promptly caved when threatened with a reduction in federal funding.

What OCR wants from the schools is publicized primarily through in terrorem enforcement guidelines. The basic text that affects issues involving claims of sexual violence on campus was adopted in 2001, at the very end of the Clinton administration. This document requires schools to have well-publicized and effective grievance procedures, including notice and impartial investigation of complaints, and to take steps to provide remedies for violations of the statute.

It was in 2011 that OCR issued its now infamous “Dear Colleague letter” to all schools that receive federal funding. This letter purported to supplement the 2001 guidelines, and it was followed three years later by another document providing additional details. Unlike the Clinton guidelines, which were left in place by the Bush administration, these new pronouncements did not go through a notice-and-comment process. Nor did they acknowledge the alterations they were making in the policies that had been in place for a decade.

In crucial respects, however, the two enforcement regimes are radically different. Here are examples of those differences:

First, many schools have traditionally used a clear-and-convincing standard of proof in administering student discipline, and this was allowed under the 2001 Clinton guidelines. The Obama administration demanded that schools lower the standard to preponderance-of-the-evidence for cases involving allegations of sexual violence.

Second, unlike the 2001 guidelines, which expressly pointed out that public schools must comply with the due process requirements of the U.S. Constitution, the 2011 Dear Colleague letter appears to subordinate these requirements to OCR’s view of what is required by Title IX.

In theory, public schools are obviously required to provide due process before taking adverse actions against accused students, no matter what OCR may say. Less obviously, private schools may be bound by the same requirement because they are acting as enforcement agents for the government. And OCR can be very aggressive in using a school as its coerced agent.

Not surprisingly, schools tend to be more impressed by OCR’s threats than by the theoretical possibility that a judge might someday find that they erred by complying with an OCR ukase.

Third, OCR does not even require the most basic element of due process, namely notice of the charges and a hearing, and it has actively promoted inquisitorial systems that assign a single person to investigate, prosecute, and judge accusations of sexual violence. See, as an illustration, Doe v. Brandeis University.[3]

Fourth, OCR, in another denial of fundamental fairness, strongly discourages cross-examination of complainants by accused students, and even suggests that allowing the accused to exercise this basic right of cross-examination may itself violate Title IX.

Fifth, schools are forbidden to leave the investigation of alleged felonies to law-enforcement authorities.

Sixth, OCR not only requires schools to discipline those found guilty of sexual violence, but threatens to sanction a school unless it prevents a recurrence. This creates a strong incentive for schools to expel students and publicize their alleged crimes, even when the allegations have never been reported to the police and could never lead to a criminal conviction. Complainants are therefore free to make false accusations without the risk that they will get caught lying to the police.

Since issuing its 2011 Dear Colleague letter, OCR has put more than 200 schools under formal investigation, and the spirit of that letter is reflected in what schools have done to avoid the government’s wrath. Not only have they adopted biased procedures, but many have trained their disciplinary authorities to be biased against accused men.

One school instructed school officials that if someone feels victimized by accusations of misconduct, or responds to accusations in a persuasive and logical manner, he is showing signs that he is an abuser. Another school trained its officials to believe that sex-offenders are overwhelmingly white males. At yet another, an official declared that “regret equals rape.”

OCR deals with many sensitive issues besides this one, and a thorough reform is a long-term project that will be a major challenge for the Trump administration. But certain things can be done right away. The Obama administration’s decision not to use notice-and-comment rulemaking when it created the current enforcement regime may have been illegal, but it does have its good side, in that what was done by administrative fiat can be undone the same way.

Measures that could be adopted immediately include:

  • OCR could announce that it is withdrawing the 2011 Dear Colleague letter, the 2014 supplement, and all enforcement letters that relied in any way on the new policies set forth in those documents. Doing so would restore the 2001 guidelines from the Clinton administration. The Bush administration did not find it necessary to revise those guidelines, which generally left schools with the flexibility to exercise what the 2001 document calls “the good judgment and common sense of teachers and school administrators.” Returning to the pre-Obama status quo would be a big and immediate improvement over the current state of affairs.
  • At the same time, OCR could remind schools that Title IX prohibits discrimination against both women and men, including individuals who have been falsely accused.
  • OCR could also caution schools that a failure to establish policies and processes that effectively protect accused students from false accusations may violate Title IX.

Taking these steps would only be a start, for inertial forces in the schools will in some cases need to be countered by a resolute OCR. But there is no good reason not to start, and start now.

Donald Trump’s campaign for President was unique in many ways. Not least was the spirited manner in which he promised the nation some relief from traditionally spineless Republican collaboration in politically correct injustices. Moving quickly to rein in the Education Department’s campus rape campaign would be a salutary down payment on that promise.

[1] 20 U.S.C. 1681.

[2] 526 U.S. 629 (1999).

[3] 177 F. Supp. 3d 56 (D. Mass. 2016).

Reader Discussion

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on January 24, 2017 at 13:17:00 pm

My university was created by an act of the Legislature of the Commonwealth of Virginia, passed in March, 1908. It established a public corporation, governed by an eleven member board of trustees. As the university grew in size in subsequent decades, the board delegated authority to a President, and then later to an increasingly elaborate administrative bureaucracy. But in the final analysis, all authority within the university stems from the board, and is only delegated to subordinate officers.

As a self-governing corporation, the university board is entitled to create rules of internal discipline, and to enforce them, just like any other incorporated entity that derives from the state. I am pretty sure this is true of all corporate bodies, but I am quite certain it is true for the particular one I inhabit. So far as my conduct as an officer of the university is concerned, these rules are explained in a document called the "Faculty Handbook." Faculty have input in creating and amending this document, but nothing actually becomes binding until the Board of Visitors approves it.

So far as I understand the matter, the rules by which the university-qua-corporation conducts itself do not as a matter of law (state or federal) have to follow the rules of due process established by the Constitution of the United States, or by the Constitution of the Commonwealth of Virginia, or by long-established judicial tradition stretching back to time immemorial. As a self-governing corporation, and solely with regard to its internal operation and to matters falling appropriately under the charge for the institution laid out in the 1908 Commonwealth of Virginia law that created it (and by subsequent acts of the Virginia legislature, which also are binding on the University), the Board of Visitors is entitled to make such rules as it sees fit. So rights of due process analogous to those present in criminal or civil cases under the United States Constitution and the Constitution of the Commonwealth of Virginia are not *legal* requirements. Rather, they are matters of common decency--something due to defendants within the university disciplinary system as a matter of ethical obligation, but not legal.

I am not sure to what degree these observations advance the conversation. I would think that to the extent that a university action, like for example the expulsion of a student for allegedly raping another student, create materiel damage to the student who is expelled, that student would have recourse to tort relief for damage (but not for injury). Since things like expulsion create a legal, documentary record that clearly damages the person expelled, I would imagine that persons subject to them could properly ask a court to review the internal procedures of the university that led to the expulsion. Were a Virginia court to determine that the university acted improperly according to its own procedures (as properly approved by the Board of Visitors), I would imagine that the court properly could award damages. The matter strikes me as a state issue, because the university is incorporated under state law.

The university is also regulated by Federal law, including Title IX. Were the United States Congress to mandate procedure, the university would have to follow the mandate. But it is not clear to me to what degree the US government has authority to regulate the internal conduct of a state-chartered corporation that operates entirely within the confines of the state that chartered it. My university, of course, conducts official business in all sorts of places outside the state, so that may open up certain kinds of federal government oversight.. I am pretty fuzzy on this--I would value clarification here from someone more knowledgeable.

Similarly, the university also is properly regulated by the law of the Commonwealth of Virginia. This strikes me as much more clear. If the state establishes by legislation rules of conduct for the university, I would imagine that the university would have little recourse save to follow them. So I would imagine it would be quite straightforward for the Commonwealth of Virginia to establish due process rights for defendants in University disciplinary procedures.

Finally--the coercive club that the Federal Department of Education uses to force universities to take actions it desires is the threat to withhold Federal funding. As a practical matter, a significant portion of the funding of the university derives from the Federal government, so this creates a very powerful incentive for state universities like mine to do what the Federal Department of Education mandates they do. This too, however, is easily within the power of the state government to address. If the state increased its funding of the university to replace what the Federal government withdraws, the Federal incentive would be nullified.

Am I totally off base with this analysis? I have watched Title IX unfold at my university, and have participated in the internal university committees to administer it, in large part because I have been concerned about the fairness of the process. It seems to me that any attempt to figure that out, ethically or legally, has to start with the sources of authority by which any university committee operates.

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Kevin R. Hardwick
on January 24, 2017 at 13:32:35 pm

Kevin:

You raise some interesting points: ultimate authority / governing law, the question of basic decency vis a vis the accused, etc.

While reading this, i could not help but think of the situation in the NFL, where the Commissioner enforces his own peculiar form of "due" process, sometimes referred to as getting whatever the Commissioner thinks you are "due."

Yet, this is, to my knowledge, perfectly legal; as a separate corporation, with a legally binding collective bargaining agreement, the Commish is free to abuse his employees as he sees fit. No, they are not subject to Title IX, etc, nor do they receive direct Federal monies - but the issue may be similar to your situation. What rules govern due and "fair" treatment?

I would like to hear from some of our legal beagles from Virginia on this. Are not some of the contributors to this site from (or work in) the Commonwealth?

BTW: Here is a question for you Kevin: In your school, would you say that males are treated in the same fashion as females when either is accused of some violation? If not, perhaps then there is a problem.

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gabe
on January 24, 2017 at 20:43:24 pm

Gabe--

Thank you so much, as always, for your thoughtful posts. I do not know the answer to your question, because the case records for each case are not available to me.

I think the question is difficult to answer. In theory, anyone can be raped. There are instances of coerced sex perpetrated by women on men. But I think any honest assessment of the situation has to acknowledge that the vast majority of rapes are perpetrated by men, either on other men or on women. Most of the time, men can be either perpetrators or victims, whereas women are victims. This means that the situation is not entirely reciprocal. I have no idea, honestly, how we justly should deal with this situation.

It is made all the more complex by two additional considerations. In a university, some of the men, and some of the women, who come before disciplinary committees are underage. If both parties are underage, and have sex, even un-coerced, non-violent sex, aren't both of them guilty of rape? I guess that depends on how the law is written. But a priori, it seems to me that if the definition of legal sex is that both parties are legally capable of giving consent, and that absent that consent the sexual act is rape, then if both parties are under age, neither is capable of consenting.

The second consideration is the excessive drunkenness prevalent in so many university social settings. A drunken person cannot give consent either. If both parties are drunk, then isn't any sexual activity that transpires between them non-consensual, and thus rape?

I do not know how to resolve these issues, or even how to think clearly about them. I have a teen age daughter. I know what I will be tempted to do if some drunken ass sexually assaults her. I want her to be safe. I want her to be in an institutional setting that maximizes her ability to acquire an education. So I am all in favor of taking legal recourse in the event that she is sexually assaulted. But based on what I can see, the vast majority of instances of ambiguously consensual sexual activity take place in deeply problematic settings. If we penalized the two kinds of rape I describe above equally for both partners, that might possibly have a deterrent effect on behavior. But given our cultural norms, and given the legal precedent guiding decision making in our courts, I doubt it. My guess is that no one is willing to incarcerate two 17 year olds for having sex, even though technically both are guilty of rape (I think, anyway). And I doubt that in an episode involving two drunken students having sex with each other, very many prosecutors will be willing to bring the case forward.

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Kevin R. Hardwick
on January 25, 2017 at 10:47:09 am

Kevin:

Thanks for the reply.

I was not thinking of female on male rape when I posed the question of equal treatment irrespective of gender; rather, it was a more general inquiry into standard disciplinary practices at your university. Nut your answer suffices.

You are quite right re: drunken behavior and sexual conduct? It is far too common, or so I am told, (being a bit too old to be getting drunk myself.) How do you manage this? My concern is that a fair, proper and equal process be afforded to all those accused of misconduct, be it sexual or ideological (also not uncommon on campus these days).

And that gets us back to your question re: Who controls? What legal authority governs?

Anyway, take care
gabe

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gabe
on February 14, 2018 at 11:20:58 am

[…] But others criticized it, arguing that the Obama Administration overstepped and took away due process rights from alleged […]

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.