My C-J Column on Title IX Kangaroo Courts

Reprinted with permission from the Courier-Journal

Colleges must be terrifying places these days, with the supposed explosion of rape on campuses. Why would any parent pay $60,000 a year for private tuition if there truly is a “rape culture” on college campuses?

Also frightening:  the response to this rape “epidemic” has led to an increasing number of students who are falsely accused of sexual assault and subjected to Star Chamber prosecutions on campus.

Typically the accuser is a young woman and the accused is a young man, but not always.

Some friends shared with me their daughter’s experience of such a situation at an elite college in another part of the country. Their daughter was accused by a former friend of sexual assault. The accuser complained to the college.

What happened next requires some background on an Obama administration initiative against campus sexual assault; that culminated in Title IX policy from the obscure Office of Civil Rights (“OCR”) in the Department of Education.

Title IX, enacted in 1972, prohibits sex discrimination in educational institutions that receive any federal funds (nearly all colleges and universities). It’s the statute that led to increased opportunities for women to play sports and receive athletic scholarships.

In 2011, OCR announced in a Dear Colleague Letter that Title IX applies to sexual assault and that schools that are not proactive enough in addressing sexual assault will be punished. To avoid the risk of losing federal funds, schools responded by instituting pseudo-judicial tribunals to address sexual assault accusations.

My friends’ daughter was hauled in front of one of these campus kangaroo courts. She was fortunate: her parents understood that she needed a lawyer. And they could afford to hire one to represent her in this burgeoning area of law — defending students accused of sexual assault not in court, but in Title IX proceedings. However, because the rules of the campus hearing did not permit her to have a lawyer present, her lawyer could only accompany her as an “adviser.”  That is, he had no right to make objections or cross-examine witnesses.

As a group of 28 Harvard Law professors noted, Harvard’s proposed procedures for conducting Title IX investigations and hearings lack the most basic elements of fundamental fairness and due process. The procedures stack the deck against the accused.

That’s exactly what OCR wants. For example, OCR requires the standard of proof to be the much easier to prove “preponderance of evidence” (50.01 percent) rather than “beyond a reasonable doubt” (99.9 percent). Typically there are no sworn statements or subpoenas, no rules of evidence. No right to an attorney or right against self-incrimination.

Fortunately, witnesses — other than the accuser — were truthful and my friends’ daughter was exonerated. She was not expelled or labeled a sex offender. She graduated on time notwithstanding the distraction and stress of the false accusation. Her parents will be paying off that legal bill for years but consider it money well spent. The college, meanwhile, with a hubris only the Academy could muster, continues to ask this family to donate to it.

Sexual assault, when it really occurs, is a crime. It should be investigated by professional law enforcement, not campus police. It should be prosecuted by actual prosecutors —not college administrators. Expulsion from college is not a sufficient punishment for rape:  jail is. To the contrary, merely expelling a true perpetrator just sets him free to rape non-students.

However, boorish behavior should not be equated with sexual assault. By failing to make that distinction, Syracuse University’s recent decision to ban the “kiss cam” from the Carrier Dome trivializes the seriousness of rape and non-consensual sex.

The recent AAU survey used to quantify the so-called “epidemic” of rape is problematic not just because only 19.3 percent responded to the survey. It defined “Sexual assault” and “sexual misconduct” so broadly that it included “remarks about physical appearance.”  That may be sexual harassment; it’s not sexual assault.

Likewise, spontaneous inebriated sex does not necessarily constitute sexual assault. It depends on the facts and circumstances; it is too nuanced for college  tribunals to adequately address, while trying to prevent an OCR shakedown.

As Glenn Reynolds has written, the supposed explosion in rape and sexual assault on campus is media hype of a phony crisis to justify federal intervention. The rate of rape and sexual assault, like violent crimes generally, has plummeted. And it’s lower for college students (6.1 per 1,000) than non-students (7.6 per 1,000).

Sexual assault is wrong, pure and simple. So is leveling a false accusation.

Colleges should take steps to protect students from crime, including sexual assault, and provide resources to victims. We expect colleges to take reasonable measures to keep their students — our children — safe. Not just from rape, but from false accusations of sexual assault.