Education Secretary Betsy DeVos recently stated she intends to revoke former President Obama’s 2011 guidelines for schools investigating campus sexual misconduct.
Title IX of the Education Amendments of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., and 34 C.F.R. Part 106, prohibit discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance.
Almost all Americans realize sexual assault is a major problem on the College campus. However, in attempting to cure one injustice proponents of the 2011 changes created another. They forgot about the fundamental right of due process and further, could seem to care less.
In 2011, the Education department under President Obama penned the now famous “Dear Colleague Letter” which laid out “guidelines” for adjudicating alleged cases of sexual assault on campuses across the country receiving federal funding. As you can imagine, with the threat of the loss of funding looming many colleges set up extrajudicial sex courts, where students could be found “responsible” for a crime even if there was a 49.9 percent chance that they were not responsible.
At last count, more than 150 lawsuits have been filed since 2011 by students (mostly young men) alleging unfair treatment in a campus sexual-assault proceeding.
I have handled numerous Title IX sex cases as legal counsel on behalf of the accused as well as being a media contributor for the Title IX issues. In a criminal setting, the government must prove each element of the offense beyond a reasonable doubt. This in a nutshell means, the judge or jury must find beyond a reasonable doubt that the accused committed the offense charged. The guidelines lowered the standard of proof in sexual assault cases to the “preponderance of the evidence” standard, requiring that more than 50% of the evidence points to the alleged sexual misconduct.
However, there is one problem, the Obama administration forgot to include guidelines on the rights of the accused. Thus, student courts made up of administrators and students with no background whatsoever in legal studies or administrative law are left to create a panel, weigh evidence, and decide the educational fate of the accused.
I have been in these ‘kangaroo’ courts and I am not allowed to act as the accused attorney, rather I act as an “advisor” and essentially prepare questions to ask his or her accusers or witnesses. They are blatantly biased in favor of the accuser. There is no procedure and in many cases my clients were not even allowed to present evidence obtained by campus police officers. It is an absolute free-for-all; void of any administrative or legal procedure.
This is not a problem just at local universities.
For example, a senior at Amherst College was expelled for sexual assault. The young woman brought charges two years after the alleged assault. The college acknowledged that he was drunk at the time, and that she wasn’t – which means, if anything, that she may have violated sexual-assault policy. In the campus court mandated by the 2011 letter, without benefit of counsel, cross-examination, or appeal, he was found guilty and expelled.
Later, the accused student gained access to text messages that the young woman had sent during and immediately after the alleged assault. The texts made it clear that she initiated the encounter and that she was motivated to fabricate the story of assault to prevent her roommate, the girlfriend of the accused from finding out they engaged in consensual sex.
When the accused presented Amherst with the exculpatory texts, it refused to reconsider; clear proof that the threat of losing Federal funding trumps well settled Constitutional Law. This is not an isolated case, more than 150 lawsuits have been filed against colleges for this type of disparate treatment by those accused of sexual assault in college.