Tag Archives: due process

A Judge Catches Notre Dame Acting Badly in a Title IX Case

Notre Dame stands to lose a Title IX case in an unusual flurry of kangaroo court blunders. It “investigated” the case and came away only with the female’s hostile emails, none of her loving ones (knowing that many emails were missing). When the male contemplated suicide, Notre Dame interpreted those thoughts as “dating violence,” and the male was denied a lawyer on grounds that the procedure was “educational” and not “punitive.” The “non-punitive” action cost him a lot of tuition money, banned him from taking two finals and got him expelled.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by the accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university.

A narrow judgment in a broad, well-reasoned ruling came from Judge Philip Simon in a due process lawsuit filed by an accused student at Notre Dame. The ruling (which you can read here) was a reminder that in virtually all due process lawsuits, a fair-minded judge can find ample reasons to rule against the university involved.

The specifics of the case were a little different from most due process cases. The couple had been in an ongoing relationship, for about a year. The male student (who I’ll call JD) suffered from depression in summer 2016, and this past fall, the accusing student (who I’ll call AS) decided to break things off after JD started sending her text talking about how he might commit suicide. She also reported JD to the Notre Dame Title IX office, which concluded that the texts constituted “dating violence,” since they purportedly manipulated AS.

Related: The Title IX Mess—Will It Be Reformed?

The accusing student then indicated a desire not to move forward with any allegations and reconciled with JD, only to change her mind again and reinstitute charges. Notre Dame immediately issued a no-contact order between JD and AS, to which JD responded by deleting AS’s contact information, and all of the duo’s texts, from his phone. AS, on the other hand, retained their full text message history.

Notre Dame conducted an “investigation,” but for all practical purposes, AS was the university’s investigator—she turned over text messages from her cache, but only ones that made JD look bad. As Judge Simon explained, Notre Dame had no idea that—after AS first went to the Title IX office—AS identified as Jane by the judge:

told him to “Come overrrrrr.” [Id.] He proposed that they “take a nap” and she responded that “I‘M SO PUMPED.” [Id. (emphasis in original).] The following week, on November 7th, Jane asked John if he could sleep over. Jane then implored John to “Come to champaign” (sic), which seems to have been a reference to him meeting her in Champaign, Illinois. She also offered to meet him in Chicago. [Id.] Jane then asked John to come over that day because “she was having a really bad week already and I just wanna cuddle.” The following day they planned to get together again. Jane asked John “where you at (sic)” and he responded that he would “be there in 15 minutes.” Jane’s response demonstrated that she was happy to be seeing him. She said “yayyy.” The next day they planned to meet up again at Chipotle around the noon hour. And then later that night they must have planned another get-together because Jane told John that she was coming “to pick him up.” A week later, on November 15, Jane told John to “sleep overrrrrrrrrrr.” She later had a change of mind and canceled because she needed to study and he responded that that was no problem. John told her that he loved her and Jane responded that “I LOVE YOU TOO.” [emphasis in the original.]

Incredibly, Notre Dame never asked AS to turn over all text messages (which only came to light as part of the litigation). According to the complaint, Notre Dame also ignored copious exculpatory information, including a videotape of AS saying, “I want to fuck up his [JD’s] reputation; I want to make sure he never has a girlfriend . . . here or anywhere . . . and I want him never to be able to have a social life.”

Related: Title IX Tramples Free Speech and Fairness, So Now What?

At this stage of the lawsuit, JD asked for very narrow relief—that Notre Dame allows him to take his two remaining final exams, and give him grades for those courses. Simon granted that request. But the judge’s ruling also indicated grave concerns with three aspects of Notre Dame’s investigation, and his wording suggests this lawsuit could be very difficult for the university to win. He focused on three principal issues:

(1) Evidence. “The University’s investigation might have been arbitrary and capricious,” Simon noted, “for failing to obtain and review the entire context of the couple’s texting history.” Indeed, he added, “the text messages that . . . were not available to the Hearing Panel—text messages showing sleepovers, naps together, invitations to go on trips, and lunch dates—strongly suggest that Jane did not feel threatened or intimidated by John.” In some ways, Notre Dame’s conduct was more egregious than that of the foundational text-message case (Amherst), since here, the university knew that a text message history existed, and still didn’t ask for the whole file. AS conceded in a filing to the court. Her attorney, meanwhile, bizarrely claimed that the lawsuit had left her in threat of “physical” harm.

(2) Procedure. Simon criticized multiple aspects of Notre Dame’s procedure. He noted that the university essentially allowed AS to introduce character evidence but denied JD the same right, seemingly lest the accuser be traumatized. He questioned the university’s denial of direct cross-examination; Notre Dame instead used a “stilted method” of requiring JD to submit questions to the panel, which he hoped they would ask, not allowing “for immediate follow-up questions based on a witness’s answers, and stifling [his] presentation of his defense to the allegations.”

(3) Purpose. Judge Simon appeared baffled by the university’s decision (typical in these circumstances) to deny the accused student a lawyer. And he made clear he didn’t like the university’s response. When asked “why an attorney is not allowed to participate in the hearing especially given what is at stake—potential dismissal from school and the forfeiture of large sums of tuition money—Mr. [Ryan] Willerton, the Director of the Office of Community Standards and a member of the Hearing Panel, told me it’s because he views this as an ‘educational’ process for the student, not a punitive one. This testimony is not credible. Being thrown out of school, not being permitted to graduate and forfeiting a semester’s worth of tuition is ‘punishment’ in any reasonable sense of that term.”

This statement was a remarkable denunciation of the kangaroo court structure evident at most universities in sexual assault cases. While Simon termed his comments “conjectural,” it’s hard to see how his mind would be changed on these points, since the facts of Notre Dame’s procedures and text messages already have been established.

Will Notre Dame take from this rhetoric a need to settle? And, more broadly, will other judges learn from this impressively reasoned opinion?

Without a Known Complaint, the Feds Can Force an Accused Student Out of his Dorm and Some Classes

A college student accused of sexual assault or harassment can have his dorm and class schedule changed without knowing who accused him or what the accusation is.

An administrator at a well-regarded eastern college says this:

“A student who accuses another student of violating campus policy as it relates to sexual assault or harassment may choose to keep her identity confidential. Since the Department of Education’s Office for Civil Rights requires “interim measures” to protect the complainant, it is entirely within the realm of possibility that a no-contact order is implemented by moving the accused student out of his current residence hall or changing his class schedule without his ever knowing with whom he is not to have contact.

“If the accused student is subsequently found “not responsible” for violation of the student conduct code (which is all a campus can actually adjudicate), interim measures that negatively affect him can be removed. However, the complainant can choose to maintain the no-contact order by changing her residence or class schedule and the campus—having just determined that no violation had occurred—will need to accommodate that request.”

The Office of Civil Rights Is Still Out of Control

As it left office last year, Barack Obama’s administration made one final move in its crusade against campus due process: it requested a massive increase—$30.7 million, or 28.7 percent—in funding for the Office for Civil Rights (OCR). The previous year, at a time when discretionary federal spending was barely rising, the office had received a 7 percent increase.

The Trump “skinny budget” contained an overall cut for the Department of Education, but included no specifics about OCR (or any other Education Department office). Based on its performance of the last six years in higher education, OCR deserves a dramatic reduction in its funding—rather than the huge boost it desires.

The Obama-era request envisions OCR hiring 157 new staff investigators. (OCR had asked for 200 new employees in fiscal year 2016 and received funding that allowed around 50 additional hires.) At a time of limited hiring by the federal government, why would OCR have demanded such a massive personnel increase?

A clue came in a recent article from BuzzFeed’s Tyler Kingkade. Over the past six years, Obama OCR heads Russlynn Ali and Catherine Lhamon—joined by grassroots accusers’ rights organizations such as Know Your IX—encouraged campus accusers to file Title IX complaints against their institutions.

These filings served multiple purposes for Lhamon and Ali. First, each Title IX complaint would give OCR jurisdiction to investigate individual universities, at which point the federal government could impose a “voluntary” resolution letter on the affected institution. These letters lock into place procedures for that school, even if the Trump administration eventually withdraws the Dear Colleague letter.

Second, Title IX complaints provided an opportunity for the Obama administration to stoke the public frenzy around the purported campus rape epidemic. In a highly unusual move, OCR publicized the identities of schools under investigation. This approach pressured the affected institutions to settle quickly while also leaving the impression that many of the nation’s elite institutions were indifferent to the large number of rapists in their midst.

Finally, the complaints provided a rationale for ever more frantic demands for more funding from Congress. As the 2016 budget justification explained, complaints addressing “sexual violence” were “both more complex and more high profile,” and “inadequate staffing” led to intolerable delays in handling the questions.

The resulting surge from a couple of dozen to hundreds of Title IX complaints against colleges and universities might have provided more than enough work for OCR. But, incredibly (and without announcing the shift publicly), Lhamon seized even more authority. According to Kingkade, who would have had no reason to misstate the claim (indeed, his reporting has consistently defended the accusers’ rights cause), Lhamon “expanded all Title IX sexual violence investigations to become institution-wide, so investigators reviewed all cases at a school rather than just the cases that sparked federal complaints.”

To translate: on her way out the door, Lhamon wanted to hire nearly 200 permanent employees, who would work under a true believer (Harvard’s ex-Title IX coordinator), because she had decided OCR would investigate not merely the complaints it received but thousands of other cases, even though no accuser had filed a Title IX complaint about any of these individual cases. On this matter, as on virtually all OCR-related matters during the Obama years, no sign of congressional oversight existed.

It would be difficult to imagine a more wasteful use of federal funds. Reducing OCR’s budget would help to bring the rogue office back under congressional oversight, and likely would force the new OCR head to (at the very least) temper Lhamon’s investigatory zeal.

The new administration will need to make key decisions not only on OCR’s funding level. Trump’s Education Department continues to enforce the flawed 2011 and 2014 guidance for sexual assault cases, which required colleges to use a preponderance of the evidence standard, discouraged cross-examination, instituted double-jeopardy regimes allowing accusers to appeal not-guilty findings, and urged subordinating public university students’ constitutional rights to due process to OCR’s interpretation of Title IX.

The slowness with which Trump has filled executive appointments has maximized the power of Obama holdovers. This situation is especially problematic with OCR, whose current head of enforcement, former Harvard Title IX director Mia Karvonides, dropped into her civil service position a mere three days before Trump was sworn in as president. Karvondes’ rushed appointment leaves the impression that the outgoing administration intended to maintain the unfair Obama rules regardless of what Trump did. Every day that passes without Trump staffers in OCR allows Karvonides to implement her agenda unchecked.

Finally, the Jeff Sessions-led Justice Department must decide to whether to defend Obama’s OCR overreach. The key lawsuit challenging the 2011 Dear Colleague letter—a case from the University of Virginia, which remains pending—was coordinated by FIRE, and filed by lawyer Justin Dillon. The UVA adjudicator, a retired judge, admitted that “there were signs” that the accuser “may have been capable of effective consent,” but nonetheless found the student guilty, in a case that she deemed “very close” and “very difficult.”

The most recent filing in the case came around a month before Obama left office. The Justice Department urged dismissing the student’s complaint on grounds that OCR policies are, basically, set in stone. Since UVA “knows” that “OCR considers the preponderance of the evidence standard to be the only standard consistent” with Title IX, the university would have no choice but to maintain its unfair procedures under threat of punishment from federal bureaucrats—even if a federal court overturned the Dear Colleague letter. Sessions used the excuse of a pending legal fight to reverse Obama’s era Title IX guidance designed to protect transgender teens. Will he defend the Dear Colleague letter, which actually harms accused students?

Moving beyond the Obama-era’s OCR abuses will take years. But Congress exercising the power of the purse is a needed first step in the process.

False Rape Reports in Sacred Heart

Last week featured a rarity—the filing of criminal charges against a campus sexual assault accuser. Ashe Schow has a full write-up of the case, which originated when a Sacred Heart University student named Nikki Yovino accused two of the university’s football players of sexually assaulting her.

An affidavit prepared by the local police indicated that the football players were suspended, and thus presumably found guilty. (Sacred Heart has disputed the extent of the students’ punishment.) But Yovino later admitted to police that she made it all up, seeking to engender sympathy from another male student she wanted to date. As Schow points out, this motivation resembles the Jackie case at UVA.

What most struck me, however, was the defense offered by a university spokesperson: “Whenever there is any kind of incident at Sacred Heart University, we go to great lengths to ensure due process for all parties involved. The way that this particular case is playing out certainly demonstrates the validity of our procedures.” [emphasis added] Again, this was a case in which Sacred Heart’s procedures led to the punishments of students who were falsely accused.

Though Sacred Heart promises a “fair process,” nothing in its procedures suggests fairness. The university begins by announcing its dedication to “providing information and resources to the Sacred Heart University community about the risks and myths that contribute to sexual misconduct.” What these “myths” are the procedures don’t reveal, and a Sacred Heart spokesperson did not respond to a request for the information.

The university also uses an affirmative consent policy, which effectively requires accused students to prove their innocence. “Consent,” at Sacred Heart, “cannot be inferred from the absence of a ‘no’; a clear ‘yes,’ verbal or otherwise, is necessary.” The procedures are silent on how “otherwise” can yield a “clear ‘yes,’” and despite a claim to the contrary, other sections of the guidelines outline a policy in which anything short of an ability to prove a verbal “yes” is likely to yield a guilty finding.

The university considers “persons who are intoxicated” while having sex to be victims since they are “lacking the physical and/or mental ability to make informed and rational decisions or judgments.” The policies don’t explain what happens when both students are intoxicated.

Once a charge is filed, the Title IX coordinator, rather than an independent party, investigates. If the coordinator concludes it’s more likely than not that the accused student is guilty, he goes before a hearing panel of two administrators and one professor. This panel hears “the facts of the case from both parties”—but the accused student has no right to cross-examination, no right to call witnesses, and no right to full legal representation.

These procedures are no worse than those employed at many universities, though they also give the lie to the spokesperson’s claim that the institution goes “to great lengths to ensure due process for all parties involved.” But Sacred Heart’s sexual assault procedure has a clause I’ve seen at no other school.

“An allegation that is both intentionally false and malicious,” Sacred Heart explains, “may [emphasis added] be a violation of the Sacred Heart University Student Conduct Code.”

Consider this provision for a moment. A false rape allegation, in and of itself, is not a violation of Sacred Heart’s code—the allegation must be “intentionally” false. (The code provides no description of the distinction between a false and an intentionally false claim.) But even an “intentionally false” claim isn’t a violation—the claim must also be “malicious.” (The code provides no description of the distinction between an intentionally false and an intentionally false/malicious claim.)

But even then—even if Sacred Heart has encountered a sexual assault claim that’s both “intentionally false” and “malicious”—the accuser only “may” be guilty of a code violation. So under certain (unspecified) circumstances, a Sacred Heart student who filed an intentionally false and malicious sexual assault claim against a fellow student still didn’t violate the university’s disciplinary code. It seems that Nikki Yovino found the perfect university to attend.

Due Process Wins a Battle Against a University’s Kangaroo Court

Though federal judges tend to uphold a lot of unjust campus decisions in sex-assault cases, Judge Elizabeth Dillon, an Obama appointee, proved on December 23 that some campus procedures are just too outrageous to survive judicial review.

The judge’s due process ruling came in a case out of James Madison University. (You can read her opinion here.) After troubling appellate rulings in California (which approved a process one judge had compared to a kangaroo court) and in the 6th Circuit (where one judge suggested that military court martials represented an appropriate model for campus sexual assault cases), the Dillon ruling is important.

The James Madison case also illustrates the effects of an often- overlooked effect of the 2011 Dear Colleague letter—the requirement that colleges introduce allow accusers to appeal not-guilty findings. As in comparable cases at George Mason and the University of Michigan, at James Madison, this double-jeopardy principle created an additional layer of injustice. Indeed, in all other types of disciplinary cases at JMU, an accusing student can’t appeal a not-guilty finding.

Even in an environment that often features shaky claims, the JMU one was unusually weak: the accuser filed her claim (that she was too intoxicated to have consented) only after learning that the student she’d accused had moved on to another woman; the accuser offered varying dates for the alleged attack; and the accuser’s own roommate, who the accuser had called as one of her own witnesses, told the hearing panel that on the night of the incident, the accuser was “completely fine” and didn’t seem to be drunk.

Despite a hearing that hardly passed as a paragon of due process (the accused student was forced to present his defense before the accuser’s version was offered to the panel), the accused student was found not guilty.

But—thanks to the Dear Colleague letter’s change—the case wasn’t over. The accuser exercised her right to appeal the not-guilty finding, sending the case to a three-professor panel. And the appeals occurred amidst a campus frenzy over the issue of sexual assault. A few months earlier, OCR had commenced a Title IX investigation of the university. A student named Sarah Butters generated national controversy by claiming JMU had insufficiently punished the students who had raped her.

The fall 2014 semester had begun with an editorial from the student newspaper proclaiming that the university’s alleged softness on sexual assault was the issue that “had been on everyone’s mind for these past few months,” and indicated that “we cannot tolerate a culture of sexual assault at our school.” The editors indicated that “our goal is to give our readers the information necessary to empower them to stand up against sexual assault.” The editorial, signed by all members of the paper’s editorial team, did not mention due process as an issue of any concern.

Amidst this atmosphere, the university allowed the accuser to introduce three new pieces of evidence (each of which had been available to her at the time of her complaint) to the appeals panel.

First, she offered a report from a social worker asserting that she was prone to excessive intoxication when drinking because of medication she was taking. (This report had been introduced into the case file before the original panel made its decision, but was never shown to the accused student.)

Second, she produced a statement from a suitemate claiming that the roommate who testified against her had admitted to lying.

Third, she turned over a voicemail from what she claimed was the night of the incident in which she had discussed her intoxication. Sent, she wrote, right after she left the accused student’s residence, the voicemail “emphasizes that I was drunk and unable to give consent to sex.”

Armed with this “evidence” and the audio of the original hearing—but hearing no testimony from the parties, granting the original panel’s credibility determination no deference, and (it appears) using a definition of consent that differed from that in JMU’s own policy—the appeals panel ordered the accused student suspended for five-and-a-half years.

An e-mail sent to a JMU administrator suggested that the voicemail was critical in the outcome; a subsequent email amended the claim to the new witness statements as the key. Oddly, the panel did not issue a written explanation of why it overturned the original panel’s decision; it did not even indicate that it had found the accused student guilty. Its form only indicated that it had “increased” his (previously nonexistent) punishment.

The flawed procedures in this case yielded particularly flawed results.

First, according to subsequent testimony from members of the appeals panel, they credited the claim that the key exculpatory witness (the accuser’s roommate) had lied without ever giving her a chance to respond. Even more incredibly, under JMU policies, the accused student couldn’t ask the roommate to file a rebuttal statement with the appeals panel—because (since she was a witness called by the accuser in the original hearing) he was forbidden from contacting her.

Second, and in violation of JMU rules, the accused student never saw, at any stage of the process, the social worker’s statement. So he never had the chance to hire an expert of his own to rebut it.

Finally, the so-called ‘smoking gun’ voicemail was actually from the night before the incident. Indeed, its introduction suggested that the accuser might have tried to mislead the appeals panel—which the accused student could have pointed out if JMU had given him more than 24 hours to respond to this new “evidence” (which it sent to him in the middle of winter break).

Since he didn’t see the “evidence” in time, he thought he had no chance to impeach it. One of the appellate panelists, Education professor Dana Haraway, later testified that she considered the voicemail significant in her decision. She didn’t learn about the date error until the accused student’s lawyer deposed her in the due process lawsuit against JMU. It’s hard to imagine a more cavalier approach to one of her own institution’s student’s life and reputation. Professor Haraway did not respond to a request for comment.

All of this was too much for Judge Dillon. “No reasonable jury,” she concluded, “could find [the accused student] was given fundamentally fair process. Instead, the undisputed facts show that JMU denied [him] a ‘meaningful hearing.’”

The case, however, will only lurch along. The accused student’s life has been on hold since January 2015; he filed his lawsuit in May 2015. For the next two months, the two sides will present briefs discussing whether JMU should hold a new hearing. At best, he’ll be eligible to re-enroll in the fall 2017 semester (spring 2018 if JMU requests an additional hearing before Judge Dillon)—so would serve at least a five-semester suspension for an offense that appears never to have occurred, because of procedures that were fundamentally unfair.

Judge Dillon’s ruling addressed one other significant point. In 2015, Judge T.S. Ellis (in a factually dicey case out of George Mason) issued one of the most perceptive comments in any due process ruling about the effects of a guilty finding on the accused student. He noted that a university deeming a student a rapist would have enormous consequences on his future educational and earning opportunities—since he’d have no choice, as part of applying to a new school or to any job that required a background check, to produce educational documents showing the university judgment.

JMU’s lawyer denounced this decision, which he termed the “800-pound gorilla or the elephant in the room,” as “wrong” and a “mistake.” (You can read the hearing transcript here.) In JMU’s world, any student who wanted to conceal a wrongful finding of sexual assault could simply not produce his educational records. Judge Dillon rejected this suggestion as the false choice it was.

Unfairness in the Minnesota Football Rape Case

We don’t normally think of college athletes as prominent defenders of due process. Yet perhaps the highest-profile protest against the post-Dear Colleague letter demise of campus due process came last week at the University of Minnesota. Its emergence, the reaction to it, and its quick collapse speaks volumes about the relationship between due process and policies toward sexual assault on the nation’s campuses.

In September, several members of the Minnesota football team were accused of a particularly ugly gang rape. The police investigated, but the prosecutor ultimately declined to pursue charges, largely because a contemporaneous video of the incident (taken by one of the players) showed the accuser (in the words of a police report) “certainly conscious and aware of what is going on”—“lucid” and “alert.”

The university, however, conducted its own investigation and found at least some of the players guilty of the same offense (sexual assault) for which the local prosecutor had concluded he lacked probable cause to indict. Armed with that finding, the university’s athletic department suspended the players—in the process publicly identifying them. This move prompted other members of the football team to threaten to boycott the Holiday Bowl game, only to abandon their move under heavy pressure from the university and the media.

The Limitations of Due Process Protests

The timeline of the Minnesota football team’s response resembles that of the Yale basketball team’s response to the Jack Montague case. In both instances, the team began with examples of high-profile protest. Each member of the Yale team wore Montague’s warm-up shirt before a game. Each member of the Minnesota football team stood behind a statement indicating that university procedures had denied their teammates’ “due process,” in part by finding them guilty of the same offense for which the police had chosen not to bring charges.

Within 48 hours, under what appeared to be heavy internal and external pressure, the teams backed down and issued statements effectively retracting their original protests. In both instances, these statements were radically different in tone and substance from the teams’ original actions and read as if written by a university administrator rather than by college students.

Contrast both the Minnesota and Yale outcomes to that at the University of Missouri. When the Mizzou football team threatened to boycott on behalf of student protesters alleging racial discrimination on campus, the president was fired. The backdowns in the Minnesota and Yale cases, by contrast, provides a reminder of where the power lies in universities on due process issues and sends a message to other students that standing up for due process in sexual assault adjudications will be futile.

The Minnesota case includes one element absent in the Yale matter. Local reports suggest that the players’ unity was in part eroded by the release of the university investigative report. Even construing the incident in the light most favorable to the accused players, this lengthy document revealed an ugly, troubling episode in which the accused players were almost caricatures of unfeeling misogynists. Little wonder the other players then folded. (One of the players has subsequently maintained that the boycott nonetheless will ensure that future accused students are treated fairly, but no signs exist that Minnesota will in any way change its policies.)

Ironically, however, the leaking of the report (to a local TV station) heightened the due process critique the team originally made. The report, of course, was supposed to be confidential. Given its conclusion, and its highly negative character portrayals, it’s inconceivable any of the accused players leaked it. That leaves someone from the accuser’s legal team, or a university official, as the likely source—figures willing to waive the confidentiality requirements when they thought it would be helpful to their side of the case. The report’s leaking, in this respect, casts further doubt on the integrity of the Minnesota adjudication process. Just as with Yale and the Patrick Witt case, however, I wouldn’t hold my breath waiting for an investigation to identify the leaker who violated university policies.

Blue State Laws

The last few years have featured a wave of blue states passing “affirmative consent” laws, which effectively require accused students to prove their innocence. Minnesota hasn’t enacted such a law (though the university does employ the “affirmative consent” standard, thereby defining sexual assault differently than state statutes). But the state did enact a first-in-the-nation law requiring “training” of all campus investigators and adjudicators of sexual assault cases.

The football players’ case was one of the first to be adjudicated under the new standards. This summer, I had asked Minnesota’s Title IX coordinator, Kimberly Hewitt, for a copy of the new training material; she declined to provide it, with a cc to the university public relations office. (I then obtained it through a state public records request.)

I can see why Hewitt wasn’t eager for the material to become public. Minnesota has trained its sexual assault investigators by having them attend an event organized by the Minnesota Coalition Against Sexual Assault; sessions from the National Association of Colleges and Universities; participating in the “Minnesota Campus Sexual Violence Summit”; joining an AAU Survey of Sexual Assault and Sexual Misconduct Webinar; and completing a course organized by the ATIXA Institute, an organization associated with the anti-due process NCHERM.

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”

The list of training, therefore, contains no defense lawyers. Nor does it feature a representative of a group devoted to campus civil liberties, like FIRE (or even the ACLU). So Minnesota trains its investigators and adjudicators exclusively from sources that are either neutral or who are ideologically inclined to believe the accuser (and therefore find guilt). Imagine the criminal justice context, of jurors in sexual assault trials (and only sexual assault trials) required to receive “training,” with the training material provided only by the prosecutor and not by the defense.

The effects of this training were apparent in the university investigator’s report. Both the accuser and the accused had inconsistencies in their stories. But the accuser’s inconsistencies enhanced her credibility—“we generally attribute the differences among [her] accounts over time to her gradual recollection of what she found to be a very traumatic experience,” the university report declared—while the accused students’ inconsistencies led the university investigator “to discount their credibility.”

Nothing in the one-sided nature of the training, of course, should obscure the ugliness of the undisputed conduct detailed in the report. (This was, in the light most favorable to the accused players, an episode of group sex amidst underage drinking, while the players were entertaining a high school recruit.) But despite the wording of a statement issued from the president’s office, Minnesota did not suspend several of the players because their behavior conflicted with university values; it suspended them because the university concluded they had engaged in behavior the state considers a felony—even as the prosecutor declined to seek indictments over the same behavior.

Media

Initial coverage of the players’ boycott statement was basically fair—at least in the local Minnesota media. That tone soon changed. It changed despite the fact, as Robby Soave has observed, this was a protest (from students of all races) alleging that authorities had denied due process rights to accused black males.

In the current national environment, in virtually any other context, this message –that young men of color had been mistreated by agents of the government who were investigating conduct that state law deemed to be criminal—would have been greeted with enthusiastic support from the mainstream media.

Yet (unsurprisingly, given the general media attitude regarding due process and campus sexual assault), the editorial and commentary response was overwhelmingly negative. This Sally Jenkins piece in the Washington Post is a representative sample; this Dave Zirin piece is a typically extreme manifestation of the attitude. In its editorial condemning the players who threatened to boycott, the Star-Tribune conceded that “there can be discussion over whether [preponderance of evidence is the correct standard and over the high level of secrecy involved in the disciplinary process at the University” and noted that there “has been pushback in other high-profile incidents across the country over the current system and the way standards are applied.”

In other words: the editors conceded that the due process concerns presented by the students had merit. After making the point, the editors nonetheless charged that, through their protest, the players threatened to “further damage the university’s reputation.” Is there any other context in which a left-of-center editorial page would advance such a claim about students advocating for other students’ civil liberties?

Beyond the choice of framing, both the Times (in a straight news story) and the Star-Tribune (in its op-ed) erroneously asserted that the University of Minnesota was required by “law”—even Obama administration officials (albeit very reluctantly, under prodding from Senators Lamar Alexander and James Lankford) have conceded that the Dear Colleague letter doesn’t carry the force of law. The Times quietly eliminated its error.

After the issue was pointed out on Twitter, the Times replaced, without acknowledgment, the claim that Minnesota had to use a lower standard of proof by law with the following passage: “Burdens of proof used in such investigations are frequently lower than the criminal justice system’s.” The false claim in the Star-Tribune editorial remains. The errors reflect the generally poor approach the media has featured in covering campus procedural issues.

The Minnesota football coach has said that his public support for the protest threatened his job. Given the current atmosphere on campus, he’s probably right.

Ruined by the Beach Boys and Other Title IX Disasters

In the latest expansion of the intent of Title IX, a University of Kentucky Professor drew punishment this month, partly, he says, because he was found to have engaged in “sexual misconduct” by singing a Beach Boys song at a university gathering in China last year. The professor, Buck Ryan, who directs the University’s Scripps Howard First Amendment Center, claimed in an op-ed published in the Lexington Herald Leader  that “under Administrative Regulation 6:1, Discrimination and Harassment, University of Kentucky’s Title IX coordinator ruled that the song, “California Girls,” with names of Chinese universities and cities inserted for the event,  included ‘language of a sexual nature’ and was offensive.”

Although there were no student complaints—essentially no victims—the professor who has three decades of college teaching experience, was refused due process—as is the case for most accused males in Title IX cases—and has been stripped of a prestigious award worth thousands of dollars.

A heavily redacted letter, released by the university, says that no charge of having sexual relations is involved in the case against Ryan, but leaves the impression that Ryan did something major. On December 20, an op-ed in the Louisville Courier-Journal by University PR man Jay Blanton said the Beach Boys song was not the key factor in the case and that Ryan had engaged in “inappropriate touching” and “language of a sexual nature.” Still, no formal hearing, no clearly stated charges and no on-the-record complaining witnesses, but a heavy financial loss and damage to Ryan’s reputation.

Related: The Title IX Mess: Will It Be Reformed?

In comments to the university senate Monday, Ryan said, “UK has weaponized its Title IX office and made the legal office its enforcer. It’s time the faculty stands up to the bully.” Ryan added that the Chinese students at the event, none of whom were contacted by the university, “found the charges against me mortifying and wanted to defend me. They were looking to clear their names, too.”

Since its passage in 1972, Title IX has been expanded from its original intent to end discrimination on the basis of sex in schools that receive federal funding, to include regulations promulgated in the name of preventing a hostile environment for women—broadly defined as “any unwelcome conduct of a sexual nature.” Today, any unwelcome comment to a female student from a male student, faculty or staff member is grounds for a Title IX investigation—with Title IX coordinators empowered to act as police, judge and jury in allegations of sexual harassment ranging from offensive speech to claims of rape.

Harvard canceled the men’s soccer team season because team members sent emails to each other rating women on their physical attractiveness. Columbia University followed suit by canceling the wrestling season after “misogynistic and homophobic” text messages were found to have been sent by members of the team.

This was never the intent of Title IX.  While Presidents Reagan and Bush enforced the original intent of Title IX, the overreach of the law began in 1996 with an ominous “Dear Colleague” letter sent from President Clinton’s Education Secretary to all college and university administrators.  Warning that colleges that did not ‘equalize the participation’ of males and females in athletics, would lose federal funding, the Clinton administration mandated that if the schools could not produce enough female athletes, they would have to cut male athletes—and male athletic programs—until the participation rates of both sexes were exactly the same.

That was just the beginning. While the George W. Bush administration did not expand Title IX, it did nothing to curb the abuses. And, once the Obama administration took power, the Title IX industry that had been created was so confident in its ability to manipulate gender politics on campuses throughout the country, that a whole new set of “Dear Colleague” letters began to arrive on campus in 2011. Enlisting the U. S. Education Department’s Office for Civil Rights to handle all complaints in very specific ways, the “Dear Colleague” letters required colleges to be responsible for harassment and assault that occurs off-campus as well as on-campus.

Related: How the Feds Use Orwell to Apply Title IX

The Obama administration also allowed a lower standard of evidence to “prove” the guilt of the accused. A “preponderance of evidence” standard replaced a “guilt beyond a reasonable doubt” standard.  And, as in the University of Kentucky case, there are no protections for the academic freedom of professors and the free expression of any male student, professor or staff member on or off campus.  There is no right to due process no right to an attorney for the accused—and sometimes, no appeal process allowed.

President Obama’s overreach has caused an explosion of cases. Even Brett Sokolow, who in 2014 as director of the Association of Title IX Administrators, acknowledged in a newsletter to members that in their efforts to enforce Title IX, “they are running afoul of Title IX.”  Claiming that colleges are getting it “completely wrong,” Sokolow advised campuses that “every drunken sexual hook up is not a punishable offense.”

Sokolow knows that colleges and universities have implemented Title IX so poorly that the Office of Civil Rights is currently investigating more than 200 institutions following complaints that the colleges and universities have mishandled sexual misconduct cases.  In just the past few months, lawsuits were filed by students claiming “unfair treatment” at Albany Medical College, the College of St. Benedict and St. John’s University, Shenandoah University, the University Cincinnati and the University of Maryland.

This follows high-profile lawsuits at Occidental College, Columbia University and the University of Tennessee.  Several of these lawsuits have been successful in vindicating the male student, and actually holding college administrators accountable.  Earlier this year, an Ohio federal judge allowed an Ohio State University student’s due process claims to survive a motion to dismiss, holding that the campus Title IX training at the Ohio State University may have “biased Title IX panel members,” allowing the plaintiff to proceed against OSU’s Title IX Coordinator.

Related: Title IX Tramples Free Speech and Fairness, So Now What?

In October, the Office for Civil Rights found that Wesley College in Delaware violated the Title IX rights of a male student who was accused of sexual assault—citing unfair treatment.  And, a  federal appeals court revived a lawsuit by a Columbia University male student who alleged that the university had subjected him to sex discrimination during its investigation of a sexual assault report against him.

For the unjustly accused, the ability to bring these lawsuits are themselves a victory because they reveal that colleges and universities have not been complying with their own procedures.  In most cases, accused students are not given due process – they are denied a chance to respond to allegations, they are not informed of their options for resolving the complaints, they are not given copies of the incident report or other evidence against them before the hearing, they are not allowed to call witnesses on their behalf, and they are often denied legal representation.

Last year in a case at the University of  California, San Diego, Superior Court Judge Joel M. Pressman found that the accused student was impermissibly prevented from fully confronting and cross-examining his accuser and that there was insufficient evident to back the university’s findings that the male student had forced the accuser into sexual activity without her consent. Ordering UC San Diego to drop its finding against the male student, the judge quipped that “When I finished reading all the briefs in this case, my comment was Where’s the kangaroo?”

These campus tribunals are indeed kangaroo courts. A forthcoming book (January 24) The Campus Rape Frenzy, by K C Johnson and Stuart Taylor, draws upon data from two dozen of the hundreds of cases since 2010 in which innocent students have been branded as sex criminals and expelled or otherwise punished by their colleges.  It shows why all of us are harmed when universities abandon the pursuit of the truth—and “accommodate the passions of the mob.”

For those of us who are concerned about free speech and equal protection for all students, the selection of Education Secretary, Betsy DeVos is encouraging.  But, Secretary DeVos will be battling an entrenched anti-male campus culture and the Chronicle of Higher Education has already published a warning that: “Trump Administration May Back Away from Title IX, but Campuses Won’t.”

Taking on the sexual assault industry that has been built up on the backs of innocent male students will be difficult, but President-elect Trump—no stranger to false allegations himself—has already shown a willingness to speak for those who have been silenced.

The Title IX Mess—Will It Be Reformed?

Since 2011, the federal government has made successful and devastating efforts to undermine civil liberties on campuses. The surprise outcome of the presidential election raises at least the possibility that this illicit campaign, based on a vast extension of Title IX, will be reversed. Thousands of students accused of sexual misconduct but denied due process have been victimized by the frenzy stimulated by the Education Department’s Office for Civil Rights (OCR), and by the unfair procedures that OCR has championed. (Consider events at Amherst or Yale or UVA or Brandeis, for starters.)

College hearings on sexual misconduct are often a travesty of justice. Usually, there is no attorney for the accused, no cross-examination, no discovery, no note-taking, little time for the accused to prepare and often a form of double jeopardy (the accuser can appeal but the accused cannot). Individual universities can broaden the definition of offenses (at Yale “economic abuse” counts as sexual assault) and uninvolved third-party accusations can sometimes launch hearings.

Some comments on what should, and should not, occur:

The Fate of Obama-Era Guidance

President Obama’s two heads of the OCR have ignored the requirements of the Administrative Procedure Act and imposed their dubious interpretations of Title IX without required notice and comment. They never offered a convincing explanation as to why, in part because Congress only rarely pressed them; outgoing OCR head Catherine Lhamon purported to justify OCR’s actions in this exchange with Tennessee senator Lamar Alexander, but only revealed herself to be ignorant of congressional authority.

Related: How the Feds Use Orwell to Apply Title IX

But the arrogance of Lhamon and her predecessor, Russlynn Ali, means that the 2011 “Dear Colleague” letter—and OCR’s even more troubling 2014 guidance, which suggested that OCR’s imaginative interpretation of Title IX could trump the constitutional protection of due process promised to all students at public universities—can be withdrawn without going through the notice-and-comment process.

Given the Access Hollywood tape, it might well be politically impossible for a Trump administration to simply withdraw the 2011 and 2014 “guidance.” But another avenue for action exists, including the FIRE-orchestrated lawsuit filed by a former University of Virginia student and by Oklahoma Wesleyan University. The new administration could easily enter into settlement negotiations for the lawsuit and concede the inappropriateness of issuing new regulations on all colleges and universities outside the APA’s requirements.

If this doesn’t occur, Congress becomes all the more important. The two people to watch are Lamar Alexander and Oklahoma Republican James Lankford. The Oklahoma senator issued an encouraging statement the day after the election, noting that the Education Department had “used Dear Colleague letters and guidance documents to mandate policies for schools without adhering to legally required regulatory processes. It is extreme overreach at agencies like the Department of Education that the American people repudiated in this election. I will push our new Republican-led Washington to put a stop to this abuse and restore proper regulatory and guidance processes to the federal government.”

Related: How Title IX Became a Policy Bully

Accusers’ rights organizations seem to have recognized that, at the very least, the anti-due process agenda of the current OCR might be discontinued in the next administration. And so, as the Chronicle recently reported, they’ve ratcheted up pressure on colleges to maintain the current unfair procedures that the Ali/Lhamon-led OCR helped to establish.

Yet even the most extreme of the activist groups—Know Your IX—has conceded that colleges are obliged to provide “fair” processes. (The group’s founders, Alexandra Brodksy and Dana Bolger, have defined “fair” in Orwellian terms, but they nonetheless use the language.)

Early in her tenure, Russlynn Ali made clear that the new OCR would welcome Title IX complaints from accusers angered at their college having returned not-guilty findings, or simply not rendering a guilty finding quickly enough. The new OCR could make clear that given the manifest unfairness of most college disciplinary systems on sexual assault matters, it would welcome complaints from accused students, to give the federal government a chance to counteract the improper pressure to keep disciplinary systems unfair. The resolution of the pending Title IX complaint against Brandeis—in a case that was the subject of the piercing opinion by Judge Saylor—could provide a template.

Along these lines, resolution agreements from OCR should restore earlier principles (from the Bush II administration) that colleges aren’t obligated to reinvestigate claims where a criminal complaint has been filed; and that colleges aren’t obligated to investigate allegations that occur off campus.

Distractions

Over the past five years, only a handful of politicians have paid any attention to the issue of campus fairness; as Christina Hoff Sommers presciently noted, “due process has no lobby.” Scores of GOP legislators and governors, on the other hand, rose up as one against OCR guidance regarding bathroom policies for transgender school kids.

For advocates of campus due process, then, the great fear is this: given Republican priorities, the new administration will focus its OCR reform agenda on eliminating protections for transgender public school students—a move that will receive fierce political resistance—and therefore will decide not to address the campus due process issue at all.

Related: The Feds Now Run a Bureaucracy That Regulates Sex

Any comment on a Trump-led OCR has to address what was avoided. While OCR under Obama was disastrous for due process, the crusade always had a surreal element to it. Obama, after all, was formerly a constitutional law professor, and also someone who was willing to stand up for campus civil liberties (albeit only in the free speech context). Even as his administration eroded due process rights for accused students, there was always the chance that a President with Obama’s beliefs would recognize he had gone too far.

No chance would have existed for such a course correction under Hillary Clinton, had she been elected. (Full disclosure: I am a Democrat who donated to, and voted for, Barack Obama in 2008 and 2012. My only federal political donations in 2016 went to Jason Kander, who narrowly lost in the Missouri Senate race.) To the extent that Clinton had any consistent beliefs, they revolved around a fierce connection to gender-based identity politics. And there was no doubt as to how these beliefs would have translated on campus.

Clinton’s campaign began with an official policy toward campus sexual assault—that all accused students who could not prove mistaken identity were guilty since all campus accusers had a “right to be believed.” Even Obama’s OCR, as extreme as its approach toward campus due process had been, never adopted such a policy. Clinton withdrew the line only after she was asked how it would apply to her husband’s accusers, but there seems little doubt that she would not have granted the same degree of skepticism for students accused of sexual assault on campus.

It also seems likely that a Clinton OCR—perhaps with Lhamon staying on for a second stint in charge of the agency—would have more aggressively targeted campus free speech. The University of Montana “blueprint” (imposed by OCR and the Justice Department) supposedly was abandoned after a public outcry. But its basic principles were quietly extended to the University of New Mexico and could have formed a national template under four years of Clinton.

In a Clinton presidency, Title IX would have been used as a sword against fairness and due process. If nothing else happened last Tuesday night, that outcome appears to have been avoided.

Yale Defends Its Star Chamber Hearings

The Obama administration, acting through the Office of Civil Rights, has made a terrible mess out of sexual misconduct hearings on our campuses, but it did one good thing without thinking much about it: it targeted one university—Yale—for regular reports on how it dealt in sexual assault hearings.

The reports, released by Deputy Provost Stephanie Spangler, are bare-boned and hardly meant to be informative, but they have included enough information to demonstrate the fundamental unfairness of Yale’s procedures and the witch hunt atmosphere that has permeated the campus. Perhaps for this reason, OCR has avoided instituting a reporting requirement like Yale’s on any other institution.

Recently, Yale’s dubious policies came under higher-than-usual scrutiny, thanks to a perceptive Wall Street Journal op-ed from Jennifer Braceras—who correctly noted that the accused enjoyed far more rights under the notorious Star Chamber than they do in Yale’s sexual assault disciplinary tribunals. Jack Montague, Braceras noted, discovered first-hand just how unfair Yale’s procedures could be.

He had no right to direct cross-examination, no right to have a lawyer fully participate in the process, and received a judgment from a “trained” panel that seemed predisposed to find guilt. He also was charged in seeming violation of Yale guidelines, which (as Spangler explained at the time) did not apply to cases like Montague’s, where the accuser declined to file a complaint.

Braceras’ op-ed generated a response, from Yale professor David Post, an aquatic ecologist who chairs the University-Wide Committee on Sexual Misconduct (UWC). Post deemed Braceras’ comments an “affront” to him, noted that many Yale cases end with no punishments, and gushed about “Yale’s multilayer process,” which “allows parties to submit and respond to evidence, engage legal counsel, submit questions for a hearing panel to ask the other party and file an appeal to the university’s highest levels. Each complaint is investigated by an outside fact-finder.”

According to Professor Post, “Yale’s process is honest, fair, transparent and respects privacy.”

First of all, here’s a statement on the Montague lawsuit, offered to the Hartford Courant, by a Yale public relations staffer: “Yale always respects the privacy and confidentiality of all students involved in a disciplinary process. Yale’s procedures for addressing allegations of sexual misconduct are thorough and fair. Allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student’s dean.

Throughout the process, all parties have advisers, which can be legal counsel, and they can appeal a decision.” Previous Yale statements also had stressed the fact that not all accused students are found guilty (citing the same statistics as Post), in following the outlines laid out by Judge Furman’s opinion in the Columbia case. Apparently, no one told Post that the Second Circuit had overruled Furman.
The remarkable similarities between the earlier Yale publicity statement and Post’s letter—which ostensibly contains his own words, and reflects his own thinking, not that of a Yale public relations officer—raises some questions about the professor’s “honest[y].”

As to the other qualities of Yale’s procedures: I’m sure that Montague—like Patrick Witt before him—was surprised to discover Yale’s commitment to respecting “privacy.” Indeed, after Montague left the team, Yale’s Women’s Center released a statement “speculat[ing]” that “it seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for.”

The claim of transparency also intrigues. This assertion was the major difference between Professor Post’s letter and the earlier statement from Yale’s p.r. office (which, wisely, made no mention of the concept). It’s not clear why Professor Post added the claim since Yale’s process is anything but transparent. It’s closed to the public. The university has refused to release the “training” all UWC members receive. And Yale makes no promise to share with the accused students all the evidence the purportedly independent “fact finder” uncovers.

As for the claim of Professor Post—and Yale’s spokesperson—that the university’s process is “fair”: even as last year’s protesters demanded a more “diverse” English fare, it seems that Orwell is alive and well on the New Haven campus.

Brown U. Messes Up Sex Assault Case, Accused Prevails

In campus sexual assault hearings, due process for accused students is rare, because of pressure from feminists and campus activists, administrators’ diffidence, and the Obama administration’s 2011 “Dear Colleague” letter that minimized protections for the accused.

Getting these cases into court for a due process trial is even rarer, but now the first such trial since the issuance of the “Dear Colleague” letter has ended with a victory for an accused Brown University student. Chief U.S. District Court Judge William Smith—as he had strongly hinted during oral arguments in mid-August—vacated Brown’s disciplinary judgment, arguing Brown had violated its own procedures, thus producing an unfair result.

Related: No Due Process, Thanks—This Is a Campus

The case involved student attempts to influence the judge, biased training of panelists in Brown’s sexual assault cases and the university’s extraordinary belief that flattery and flowers qualify as a manipulative part of sexual assault.

The case arose out of a fall 2014 incident where two members of the Brown debate team had oral sex after purportedly meeting (in a small room on campus) to watch a very late-night movie. In texts that flew back and forth between the two, the male student made clear his desire for no-strings-attached sex; the female was ambivalent, but signaled consent in some of her texts, while in others stating she wasn’t eager for sex. A few weeks later, the male student urged the female to put in a good word for him with a friend, with whom he wanted to have sex. These were not, to put it mildly, overly appealing characters.

Related: Don’t Bother with Due Process

In his 84-page ruling (which you can read here, and which both Robby Soave and Ashe Schow have also summarized), Smith identified three areas of misconduct by Brown (definition of consent, conduct of investigator, conduct of one of the panelists). Some of these issues were peculiar, related to the specific facts of this case, in which Brown had changed its policy between the time of the incident and the time the accuser decided to file her charges.

The decision has three areas of relevance, however, for matters beyond Brown. The first involves the “training” that the Office for Civil Rights (OCR) mandates all schools to provide to panelists in sexual assault cases. The equivalent in the criminal justice process would be if all jurors in rape trials (and only in rape trials) had to get training material—provided only by the prosecutors, designed to increase the chances of a guilty finding.

Anything Proves Sexual Assault

The inevitable result of this biased “training” manifested itself in the Brown case. After the incident, the accuser told a roommate what a great time she had with the student she’d eventually accuse; post-incident text messages sent by the accuser likewise indicated her having consented to sex. But one of the panelists, Besenia Rodriguez, said she didn’t consider the post-incident texts or conversations because her interpretation of Brown’s “training” suggested that sexual assault survivors behave in “counter-intuitive” ways. Therefore, she reasoned, “it was beyond my degree of expertise to assess [the accuser]’s post-encounter conduct . . . because of a possibility that it was a response to trauma.”

Rodriguez’s contention that her university-provided training shows that essentially any behavior—intuitive or counterintuitive—proves sexual assault “clearly comes close to the line” of arbitrary and capricious conduct, Smith noted. Yet the training Rodriguez received, and the mindset she reflects appears to be commonplace in campus sexual assault matters.

The case’s second key feature involves the pressure campaign—in the form of non-public e-mails—organized by a Brown student named Alex Volpicello. He even prepared a template—and dozens of students followed his lead and e-mailed Smith to urge him to uphold Brown’s handling of the case.

Volpicello’s ham-handed initiative predictably backfired with Smith. But the flurry of e-mails provided Smith with a glimpse of the witch-hunt atmosphere that exists on today’s campuses. He was deeply troubled, noting that “the Court is an independent body and must make a decision based solely on the evidence before it. It cannot be swayed by emotion or public opinion. After issuing the preliminary injunction this Court was deluged with emails resulting from an organized campaign to influence the outcome.

These tactics, while perhaps appropriate and effective in influencing legislators or officials in the executive branch, have no place in the judicial process. This is basic civics, and one would think students and others affiliated with a prestigious Ivy League institution would know this. Moreover, having read a few of the emails, it is abundantly clear that the writers, while passionate, were woefully ignorant about the issues before the Court. Hopefully, they will read this decision and be educated.”

Alas, the anti-due-process activists have shown no interest in education. Indeed, Volpicello issued a statement denouncing Smith’s ruling as indifferent to “the emotional trauma of the survivor” and insulting to “the intelligence and civic awareness of us as Brown students.” “Where is the justice?” wailed Volpicello. Where, indeed.

Third, despite the victory for the accused student, Smith’s ruling was very limited. He appeared deeply reluctant to involve himself in a campus disciplinary matter and explicitly said Brown could re-try the accused student—even as he spent page after page detailing Brown’s dubious conduct in this case. (And this comes after he spent page after page detailing Brown’s dubious conduct in another sexual assault case.) Nor did he pull any punches about the absurdity of Brown’s current policy, which defines sexual assault as including such behavior as a male student giving a female student flowers, or flattering her, in hopes of getting her to agree to sex. As Smith noted, Brown defines such manipulative behavior as sexual assault.

As FIRE’s Samantha Harris perceptively noted, “Smith’s opinion also makes quite clear that the court takes no legal issue with the substance of Brown’s new Title IX policy, which employs an affirmative consent standard and uses a single-investigator model to resolve claims . . . Courts are deeply reluctant to interfere in the inner workings of university judicial systems, particularly at private institutions . . . When we talk to the families of students facing serious misconduct charges at private universities, they often express shock at how easily the school can jeopardize a student’s future while giving him or her so few rights. This case, while a legal victory for the plaintiff, underscores this problem.”

In his opinion, Smith contended that he could strike down only a college disciplinary system that “tends to injustice.” If a system whose personnel regularly violate students’ rights, while defining the giving of flowers before sex as a sexual assault, and amidst a witch-hunt atmosphere doesn’t tend to injustice, what type of system possibly could?

Campus Surveys Inflate Rape Statistics

Calls for additional or new “campus climate surveys” have been a regular feature the post-2011 war on campus due process. The White House has produced a template that colleges can copy. The Gillibrand/McCaskill Campus Safety and Accountability Act (co-sponsored by such Republicans as Marco Rubio, Charles Grassley, and Kelly Ayotte) contains a provision seeking to make such surveys mandatory. Given the Obama-Gillibrand-McCaskill-Rubio record on campus due process, it should come as little surprise that something the four of them want is problematic.

Though often billed “campus climate” surveys, these polls do little of the sort. They never ask, for instance, whether students understand the specifics of their campus adjudication system’s procedures (such as the preponderance of evidence or the lack of meaningful legal representation). Nor do they seek to ascertain student attitudes toward due process matters at the school—a topic that should be obvious if the real goal were to get a sense of the “campus climate.” And, of course, their anonymity ensures that climate surveys deal only with allegations of sexual assault, and provide no way of testing their accuracy.

The White House template suggests that universities survey “perceptions” of “attitudes” among students regarding sexual assault. (If perceptions and attitudes are all that’s required, it makes the exclusion of questions about due process all the more puzzling.) White House guidance strongly discourages schools from asking students if they were raped or sexually assaulted, instead asking for behaviors that the school’s researchers can then re-interpret as sexual assault. This list is so broad as to include “sexual contact” while “drunk.”

For students who didn’t report such incidents, the template asks them which of twenty-four possible reasons explains why they didn’t report. The possible answers include such duplicative items as “didn’t have time to deal with it due to academics, work” and “had other things I needed to focus on and was concerned about (classes, work)” or “I thought nothing would be done” and “didn’t think the school would do anything about my report.”

Beyond the limited array of questions, the surveys suffer from another fatal flaw—in the current campus environment, they aren’t really designed to solicit information. Instead, their primary goal appears to be to confirm preexisting beliefs about the existence of a campus sexual assault epidemic.

Consider the reaction to a recent Stanford survey. It revealed that 1.9 percent of Stanford students said they had been sexually Assaulted. This figure (which would translate to around 160 sexual assaults, given the university’s enrollment) would make the Stanford campus the violent crime capital of Palo Alto, which in the last five years has averaged around six rapes or attempted rapes annually. Nonetheless, it generated fury from Stanford campus activists, led by the anti-due process law professor, Michele Dauber—who seemed outraged that it didn’t return the preferred 1-in-5 figure.

In response, students passed a non-binding resolution demanding a new survey, which would presumably return a higher figure of sexually assaulted students. A group of Stanford alumni penned a letter threatening to withhold financial donations to the university unless Stanford conducted an “improved survey” that used the methodology of the AAU. The signatories included Stanford Ph.D. Paul Gowder, whose dismissal of campus due process was previously eviscerated by Scott Greenfield.

The AAU’s 2015 survey, which my colleague Stuart Taylor strongly critiqued, returned a figure suggesting that the campus sexual assault rate was roughly the same as (and perhaps even higher than) the rape rate in war-torn areas of the Congo, where rape is used as a weapon of war.

What’s the purpose of a survey if activists already know the result they desire? It clearly isn’t to discern information. Instead, the goal at Stanford—just as with Gillibrand and McCaskill—is to generate apocalyptic figures, which then can justify the diminution of due process.

Suing the Office for Civil Rights

The prospect of the Office for Civil Rights (OCR) being sued has been much in the news lately. Talk began with an announcement from FIRE—on the fifth anniversary of the issuance of the “Dear Colleague” letter—that it was soliciting an accused student to sue OCR. Attorney Andrew Miltenberg then filed two such suits, on behalf of an accused student from Colorado and a state legislator from Georgia.

In a break from the past, the Dear Colleague letter reinterpreted Title IX to grant the federal government authority to order colleges to enact specific disciplinary procedures for handling sexual assault (and sexual harassment) complaints filed by one student against another. Each of the changes ordered or strongly urged by the administration increased the likelihood of a guilty finding; the best-known change required colleges to use the lowest burden of proof, preponderance of evidence (50.01 percent), to determine guilt.

Related: An Illegal Program OCR Won’t Strike Down

OCR issued the Dear Colleague letter without going through a notice-and-comment period, which the Administrative Procedures Act requires for new government regulations. Subsequent claims by OCR head Catherine Lhamon as to why the office pursued this unusual course—that it didn’t need to do so, because the preponderance standard previously had been offered in resolution agreements with two of the nation’s thousands of colleges; or that the Dear Colleague letter merely provided guidance—don’t pass the laugh test. The most likely explanation: the delay caused by notice-and-comment would have ensured that the Dear Colleague letter wouldn’t have appeared until after the 2012 elections, robbing the letter of its value confirming the administration’s identity politics bonafides.

Republicans control 34 of the nation’s 50 governorships; many of these states have been under GOP control for more than a decade. Every state’s higher-ed law is different, but all give at least some control (usually through appointment of trustees) to a governor. Any of these 34 state education boards would have had standing to challenge OCR’s new mandate. Yet none have—a reminder that campus due process has no constituency, and with the exception of Lamar Alexander and James Lankford, the Republican record on this issue is very poor.

Any lawsuit coordinated by FIRE—or the two Miltenberg lawsuits already filed—first will need to survive a challenge on standing that a university threatened by OCR would not face. But the “Dear Colleague” letter not only lowered the evidentiary standard, but also mandated the right of accuser to appeal, pressured colleges to accelerate their adjudication processes, and discouraged cross-examination. So for standing purposes, the likeliest case would involve a student—as in the recent cases at James Madison and George Mason—whose not-guilty finding got overturned on appeal.

More often than not, when universities have lost motions to dismiss in due process lawsuits, they’ve quickly moved to settle the case. The federal government has no incentive to settle, so this litigation likely will be protracted. What would the effects be if any of these lawsuits succeed?

In theory, colleges could return to fairer adjudication systems—they could increase the burden of proof, end the double-jeopardy scenario where not-guilty findings can be appealed, and create more robust investigations. It seems unlikely that many colleges would actually pursue such a course. But the termination of the “Dear Colleague” letter would, at the very least, remove any chance that judges could rely on it—as occurred in the recent Cincinnati decision—to side with universities in due process lawsuits.

Returning to the pre-“Dear Colleague” letter status quo also would allow for a more even-handed discussion of why colleges are legally compelled to adjudicate felony allegations by students in the first place. The recent article by Jacob Gersen and Jeannie Suk uncovered at least one resolution letter, from 2005, in which an OCR regional office made clear that colleges had no obligation to investigate criminal offenses.

Bush-era court decisions to the contrary seemed far more limited than anything the Obama administration has proposed. A decision from the 11th circuit, for instance, made clear that its findings were dictated by the unusual facts of the case—that the University of Georgia recruited a basketball player who had committed sexual misconduct at his previous school. And the only non-athlete case from the Bush years that foreshadowed the Obama policies—the Kelly case at Yale—featured a judge who seemed to ignore the provisions of the Supreme Court’s 1999 Davis ruling. (You can read materials from the Kelly case file here.)

Progress toward a fairer campus adjudication system—much less a structure where colleges no longer investigate felonies at all—can only occur once the “Dear Colleague” letter ceases to exist. Hopefully the courts will be up to the task.

Alleging Sexual Assault When an Affair Ends

Have you noticed how many of the campus accusations of rape/sexual misconduct are reported after the 3rd, 4th, or 5th sexual encounter? It’s possible, of course that rape-minded males on campus like to let a relationship proceed a while before forcing themselves on a woman. Or it could be that something happens in the midst of a sexual relationship (or a series of hook-ups) that sours the female on a sexual partner. For instance, she may see him with another woman, or she may run into a female from the campus gender lobby and learn that all men are pigs and all disappointing sex can be counted as rape. After all, the famous Catharine MacKinnon said as much:

“Politically, I call it rape whenever a woman has sex and feels violated.” (Feminism Unmodified, 1987). Of course, she may feel violated by his rudeness, promiscuity or failure to call the next day. Whatever. It’s all rape. Or so says a leading voice in the feminist canon.

This meditation is prompted by a victory of sorts by one of the railroaded males. “John Doe,” a  student at James Madison University, was cleared of sexual misconduct,  but convicted on appeal and expelled under a blizzard of Kafkaesque procedures (no notice of the meeting, no names of judges provided, no copy of the new charges—though he was allowed to read it and take notes). Elizabeth K. Wilson, an Obama-appointed federal judge, ruled that Doe’s suit alleging lack of due process can proceed. Accounts of the case are provided by Robby Soave of Reason (“The accusation is among the more dubious ones I‘ve ever read about.”) and Ashe Schow of the Washington Examiner.

On appeal, the accuser was supported by statements from her residential advisor and her Title IX representative. Both say that the first of five sexual encounters between accuser and accused was not consensual. (The accuser’s roommate said it was consensual). The pair exchanged friendly messages after the first encounter, and she took the initiative in other sexual meetings. After the third, however, she showed up at his dorm carrying her pillow, but left when she saw another woman sitting on his bed. Hmmm. Could this have been a MacKinnonian violation?

Senators Reward OCR Abuses with Budget Hike Proposal

Twenty-two Senators have asked the Appropriations Committee to increase the budget of the Education Department’s Office for Civil Rights (OCR) by almost 30%. All of those Senators are Democrats except for Sen. Dean Heller of Nevada.

OCR has pressured colleges and high schools to adopt unconstitutional speech codes. It also has pressured school districts to adopt veiled racial quotas in school discipline. And in sexual harassment cases, it has stacked the deck against accused students, and occasionally forced colleges to reward false allegations. It has done all these things by expanding and essentially rewriting the federal civil-rights laws Title VI and Title IX through uncodified administrative “guidance” and “Dear Colleague” letters.

The pretext for this proposed increase is that OCR is supposedly overworked. But if this is actually true (which is doubtful, as I explained in the Chronicle of Higher Education; delays at OCR often occur due to its own slowness, inefficiency, and mismanagement), it is only because of OCR’s own overreaching. It routinely makes up violations out of thin air in a way that generates far more “violations” to investigate.

The “Dear Colleague” letter lowered the burden of proof in campus cases of sexual misconduct from ”clear and convincing evidence” to “preponderance of the evidence,” in effect just over 50 % certainty of guilt. It also helped erode other due process protections.

As The Washington Examiner notes, Several Democratic senators are requesting additional funds for the Education Department to continue policing the sex lives of college students.

Sens. Kirsten Gillibrand, Tim Kaine, Claire McCaskill and Mark Warner have written a letter calling for increased funding for the Department’s Office for Civil Rights. . .The senators are requesting a budget of $137.7 million for OCR. [The current level is $107 million].

Here’s how we got to this point, put as simply as possible: In 2011, OCR sent out a “Dear Colleague” letter that vastly expanded the definition of Title IX and what schools needed to do in order to comply with the statute. Because of the broadening of the statute, schools have been accused of violating students’ rights under Title IX and have come under investigation by OCR. Now OCR is requesting more money to investigate these schools because it has become overwhelmed.

The “Dear Colleague” letter sent by OCR in 2011 did not go through the required notice-and-comment period…. This prompted Sen. James Lankford, R-Okla., to demand that OCR justify its overreach. OCR failed to do so to Lankford’s liking.

Why does this matter? OCR expanded its own responsibilities — it wasn’t Congress or anyone else who gave it more authority. Put another way: OCR expanded its own responsibilities and now wants more money to carry out those responsibilities.

Sherry Warner, president of Families Advocating for Campus Equality, criticized the proposed increase sought by the Senators in their March 17 letter. “The request by Senators McCaskill and Gillibrand of $137.7 million for the Office for Civil Rights at the Department of Education essentially rewards the OCR for its current overreach on college campuses,” Warner wrote. “This request asks the Appropriations Subcommittee on Labor, Health and Human Services & Education to fund the OCR’s illegal, expansive and nebulous standards which schools around the country are struggling to enforce.”

Legal experts have also questioned the wisdom of increasing OCR’s budget. In a February 26, 2015, letter to Congress, two members of the U.S. Commission on Civil Rights noted that OCR “has all too often been willing to define perfectly legal conduct as unlawful. Though OCR may claim to be underfunded, its resources are stretched thin largely because it has so often chosen to address violations it has made up out of thin air. Increasing OCR’s budget would in effect reward the agency for frequently overstepping the law.”

Congress already increased OCR’s budget by 7% last year in the omnibus spending bill passed in December with President Obama’s assent. That drew criticism from Investor’s Business Daily, which lamented that the “omnibus spending bill grants a generous 7% increase in the budget for the Education Department’s Office for Civil Rights, which is pressuring school districts across the country to adopt racial quotas in discipline,” in what the newspaper characterized as “radical, out-of-control, race-mongering.”

It also is not clear that increases in OCR’s caseload in recent years actually reflect additional work. On March 18, 2015, The Washington Post quoted OCR’s head admitting that just “two individuals were responsible for filing more than 1,700 of those allegations.” Former Congressman John Linder has noted that OCR is extremely inefficient in handling its cases.

If OCR were not stretching and rewriting the law, it would probably have fewer complaints to process than in years past, and could make do with a smaller budget than it now has, as I explained earlier. Its budget should be cut, not increased.

Title IX Tramples Free Speech and Fairness, So Now What?

The American Association of University Professors (AAUP) has just dipped its oar in the dank water of Title IX.  The AAUP’s draft of its new document, The History, Uses, and Abuses of Title IX, leaves much to be desired.  But welcome to the fight, AAUP.  We’ve been wondering when you would show up.

From 1972 to Now

A refresher.  How did we get here?

Title IX is Title IX of the Higher Education Act, which was added to the 1965 Act as part of its 1972 reauthorization. The key sentence in it is, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

That seemed simple enough at first. Don’t discriminate against men or women on the basis of their sex, you American colleges or universities, or we will cut off your federal funds. “Financial assistance” referred primarily to federally guaranteed students loans, codified as Title IV of the Higher Education Act. By 1972, almost all colleges and universities had become addicted to the money flowing in from those loans.  The loans officially went to the students, but the dollars went to the college bursar offices, and the colleges had to be pre-approved by the Department of Education as worthy recipients.

So Title IX had instant clout. But it was also a bit murky.  Clearly it didn’t apply to single-sex institutions.  What forms of discrimination did it legislate against?  The answer emerged slowly, first through regulations issued by the Department of Health, Education, and Welfare in 1975 and later through litigation. The 1975 regulations suddenly made it clear that Title IX was going to be used to advance women’s sports on campus. But it took years of litigation to arrive at what Title IX would really mean: the destruction of many men’s sports teams to ensure that women’s sports were in parity with men’s sports.

Title IX soon began to grow in new and unexpected directions, sometimes in conjunction with court decisions that didn’t initially appear to have anything to do with higher education.  A good example is the Meritor Savings Bank v. Vinson U.S. Supreme Court decision of 1986, which defined “hostile environment” for sexual harassment cases under Title VII of the 1964 Civil Rights Act.  It would take several more decisions and some creative thinking on the part of regulators to get to the idea that wherever an environment can be described as “hostile” there also is a Title IX discrimination case waiting to be framed and fitted out.

“Hostile environment” was supposedly limited by the Supreme Court in Davis v. Monroe County Board of Education in 1999 to “severe, pervasive and objectively offensive” sexual harassment, but OCR has seen no need to get so fussy.  It sees “hostile environments” created by harassment pretty much wherever it likes.

Complaints about how Title IX now runs roughshod over due process, academic freedom, and basic fairness are now legion. The basic picture is that the mere expression of some words and ideas is now at risk of being conjured into a Title IX complaint on the grounds that those words and ideas make some people uncomfortable.

Dissents

My organization, the National Association of Scholars, has been criticizing the new Title IX regime for years.  We also have an older history of wrestling with the excesses of the feminist-inspired attacks on academic freedom. NAS isn’t alone in this.  FIRE is a stalwart ally, among others. NAS’s 2014 “Compendium of Key Sources” on sexual assault provides a good summary as well as a gateway to other materials.

The AAUP has also on previous occasions ventured into this topic, most notably in its 2012 “Campus Sexual Assault: Suggested Policies and Procedures.” But the AAUP’s brand new statement ventures in a somewhat unexpected direction.  It seems, at least to some of its first readers, like a stronger check on OCR policies.

“A Slew of New Problems”

The History, Uses, and Abuses of Title IX impressed The New York TimesInside Higher Ed and The Chronicle of Higher Education the same way:  as a complaint that Title IX rules have gone too far and are stifling free speech.

The New York Times leads with “broadening definitions of inappropriate sexual behavior” having “a chilling effect on academic freedom and speech.”

Inside Higher Ed leads with the Office for Civil Rights (OCR) creating “a slew of new problems with implications for free speech and academic freedom.”

The Chronicle of Higher Education headlines, “AAUP Slams Education Department and Colleges Over Title IX Enforcement,” and leads with the sexual assault rules that “trample faculty members’ rights to academic freedom, due process, and shared governance.”

All three see the AAUP as boldly stepping forward to declare that the Title IX enforcement regimen has gone too far.  It is now chilling/compromising/trampling free speech—which doesn’t sound especially good.  Has the AAUP suddenly come to the realization, long since achieved by millions of other Americans, that Title IX rules and enforcement have gone crazily overboard?

Let’s not be hasty.

Two of the journalistic watchdogs of higher education are quick to add zag to their zig:

The New York Times: The AAUP “does not mean to underestimate the gravity of sexual harassment complaints.”

Inside Higher Ed: “The Office for Civil Rights brought needed attention to the problem of sexual assault and harassment on college campuses.”

The Chronicle of Higher Education, however, sticks closely to the theme that the AAUP has launched a relentlessly tough-minded criticism of OCR’s Title IX overreach.

What’s the truth of the matter?  Has the AAUP consulted its moral compass and found the true north of presumption of innocence, due process, fair treatment of the accused, respect for evidence, and freedom of expression?  Or has it offered a temporizing defense of some of its principles some of the time, provided that they don’t get in the way of the feminist social justice agenda?

Feminists Burnt by Feminism

Alas, when we turn to the report itself, it is more the latter.  The major problem that the AAUP raises with Title IX rules is that they have more than once been turned against well-meaning women’s studies professors and other campus feminists. The “abuses” signaled in the title of the report exist at an abstract level for much of the report: “OCR has given only limited attention to the due process rights of those accused of misconduct.” [p. 17] But when AAUP gets down to specifics, we hear very little of the hapless male students thrown under the Title IX bus on flimsy or no evidence.

Instead we have accounts of the travails of Professor Patty Adler at the University of California, Boulder, who was Title IX’d for having her undergraduate teaching assistants in her Sociology class, “Deviance in US Society,” act out roles in class as “Eastern European ‘slave whore,’ pimp, a ‘bar whore,’ and a high-end escort.”  For this Professor Adler found herself accused by students of sexual harassment and was pressured by her dean to accept an early retirement.  The dean eventually backed down but Adler, “deeply affected by the chilling academic freedom climate,” retired anyway after one more semester.  [pp. 23-24]

AAUP’s second example: Louisiana State University early childhood education professor Teresa Buchanan, drummed out of her job after complaints from students about her “salty language.” Some of her students, preparing for careers teaching very young children, didn’t care for “F*** no” interjections, her use of “a slang term for vagina that implies cowardice,” and similar indiscretions.  Buchanan defended herself saying, “The occasional use of profanity is not sexual harassment.” But Title IX rules are pretty tough.  Buchanan is suing. [pp. 24-25]

Not So Fun Home

Another incident the AAUP draws attention to is the closing of Center for Women’s and Gender Studies at the University of South Carolina Upstate.  The closing “coincided” with controversy about the use of the “lesbian coming-of-age story,” Fun Home, as a common reading at the university. Fun Home had garnered “trigger warnings” at three other colleges, and a Title IX administrator at a university in another state in a previous year had issued a memo that warned that some students might have had “traumatic experiences” that teachers using “materials containing instances of violence related to power, control or intimidation” should take into account.

So, a memo by a Title IX administrator at a university in one state; a “trigger warning” on a book in three other universities in different states; and the closing of a Women’s Studies center at yet another university add up to what?  In the AAUP’s audacious analysis: “the fact that the serious study of sex and sexuality are becoming increasingly vulnerable fields of study.”

Kipnis’ Conniption

The AAUP report also devotes some attention to Northwestern University Professor Laura Kipnis, who was Title IX investigated after some students took umbrage at her article in the Chronicle of Higher Education, “Sexual Paranoia Strikes Academe,” in which Kipnis leveled some criticisms at the “new paradigm” of sexual harassment rules.  In the article Kipnis styled herself a strong feminist:

For the record, I strongly believe that bona fide harassers should be chemically castrated, stripped of their property, and hung up by their thumbs in the nearest public square. Let no one think I’m soft on harassment. But I also believe that the myths and fantasies about power perpetuated in these new codes are leaving our students disabled when it comes to the ordinary interpersonal tangles and erotic confusions that pretty much everyone has to deal with at some point in life, because that’s simply part of the human condition.

But Kipnis ended up fighting—in the AAUP’s words—a “bureaucratic ordeal” or in her own words, a “Title IX Inquisition.” Kipnis won, but clearly Title IX was being put to uses that feminists didn’t intend.

Male Victims

The AAUP does find some male victims of Title IX. A University of Kansas student had to fight expulsion after he made tweets on his private account deriding his former partner as a “psycho bitch.” Chemistry professor Craig Anderson was Title IX’d after a lab assistant accused him of using aggressive and vulgar language. The AAUP rushed to his defense because Bard College failed to provide him due process. On the other hand, Title IX completely failed to catch University of California Berkeley astronomer Geoffrey Marcy, who met his comeuppance as a repeat harasser only when BuzzFeed broke the story.

There is a great deal more to say about the AAUP’s statement, issued as a “draft” and presumably open for further changes. But one thing at a time. The one thing to start with is that the AAUP is mostly upset that the new Title IX rules are producing “friendly fire” casualties. It was meant to punish men, regardless of their guilt or innocence. To accomplish that it set the evidentiary bar so low that some women faculty members are tripped by it as well.

Some of the cases the AAUP cites make that point well enough. Others entail some stretching. But the main thing is that AAUP has paid so little heed to the larger story of Title IX tyranny: the rise of bureaucrats that can and do ruin the educational careers of male students and some faculty members on the basis of unsubstantiated allegations and sometimes even in the face of exculpatory evidence.

The Distant Shore

I am, on balance, happy that the AAUP has decided to dip its oar in these waters.  It is better that it is half-heartedly alarmed about the rolling disaster of Title IX regulation than it sit back in smiling approbation of the new regime. But I don’t think the AAUP’s oar will propel us very far across the fetid lake. AAUP doesn’t like Title IX’s collateral damage. It is rather less concerned with its main targets.  What we really need is a thorough housecleaning at OCR; the retraction of the noxious “Dear Colleague: letters; and in due course the abolition of OCR itself, which has been a deep and continuing source of injustice in higher education.

Yale’s Case against Montague Looks Shaky

Max Stern, the lawyer for the expelled Yale basketball captain Jack Montague, has spoken out, announcing that he will sue Yale on behalf of Montague in April, and clarifying some details in the case, including a very surprising one: that the aggrieved female did not file the sexual misconduct complaint. In his telling, Montague had sex with the woman four times and the woman says only the fourth time was non-consensual.

The Stern statement said, “On the fourth occasion, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him”

The accuser waited around a year to speak to someone from Yale’s Title IX office, but decided not to file a complaint with Yale. But the Title IX officer filed a complaint. A disciplinary hearing occurred, amidst a campus frenzy following a survey suggesting that the New Haven campus was a hotbed of violent crime.

Related: Montague and Yale’s Poisoned Campus Culture

The indication that the Title IX officer—not the accuser—filed the charges should have triggered outrage on the Yale campus. The Title IX coordinator has authority under Yale’s procedures to file a complaint independently. But according to the regular Spangler Reports on campus sexual misconduct (my review of the most recent report is here), such a move is supposed to occur only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” Stephanie Spangler herself reaffirmed this point in February, telling the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

There is nothing in the facts as described by Stern that remotely fits these criteria. So why did the Title IX coordinator act? Did Montague’s status as a high-profile basketball player account for the decision? Was she, for instance, fearful of negative publicity from following Yale’s own guidelines? Or was she worried about the fallout from a recent AAU survey, which had generated negative publicity for the school?

Related: Yale’s Imaginary Crime Wave

Or perhaps it’s simpler than that: The Title IX office seems to have a custom of not following the restrictions laid out in the Spangler Report. Here’s a chart using data in the Spangler Reports, involving allegations of sexual assault of Yale undergraduates. (I have updated cases originally listed as “pending” when follow-up information was provided in a subsequent report.

Yale-Title IX

 

 

 

In the two starred 2014 cases, the accused student was found not guilty. Given Yale’s stated criteria—“extremely rare cases” involving “acute threat to community safety”—it should be all but inconceivable that any case filed by the Title IX officer ended with a not-guilty finding. That two did suggests that she had ceased following Yale’s own standards even before the Montague case.

(Despite these not-guilty findings, the accused student in both of those cases received what amounted to minor punishment—a no-contact order, which could have academic consequences by limiting course offerings. In two Title IX officer-filed cases, in fall 2011 and spring 2012, there were allegations of physical, but not sexual, violence involving couples that previously had a sexual relationship.)

The pattern here is obvious: the Title IX office has gradually become more and more aggressive in filing charges, culminating in the three cases in which charges were filed in the 2015 academic year, despite the supposed restrictions on the types of cases the office can file. So: has the Title IX coordinator decided that Yale’s own regulations don’t apply to her?

Media Reaction

Richard Bradley, probably too hopefully, suggested that this might be the case that prompts the fair-minded to recognize that cases such as this should be handled by the police. But for now, they’re still handled by secret university tribunals that deny due process to the accused.

Some in the media, however, appear to be hearing the message. Both the Daily News and the New York Post had powerful editorials condemning Yale’s handling of the case. Montague’s high school coach, Dennis King, invoked the witch-hunt metaphor, and added that he knew of no player “more dedicated to self-improvement, more single-minded in his love of the game, or more committed to his teammates.” And Montague himself attended the Yale NCAA games in which, but for Yale’s procedures, he would have played.

Related: Worst College President of 2015, Who Wins the Sheldon?

Perhaps because of this public pressure, Yale issued a statement defending its approach to campus sexual assault. Most of the press release was boilerplate, but one section was interesting—stressing that most students accused through Yale’s procedures don’t wind up being expelled. This passage telegraphs the university’s likely defense, borrowing from the standard pioneered by Judge Furman in the Columbia case—since the university doesn’t find all accused students guilty, it shouldn’t be vulnerable to any Title IX challenge, and the courts should wholly defer to its unfair procedures.

Writing in the Washington Post, Shanlon Wu, a former federal sex crimes prosecutor, placed these stats in context: “What would be far more telling would be the percentage of Yale’s campus sexual assault allegations that go forward to hearings. Sending nearly every college student accused of campus sexual assault to a hearing is an abdication of responsibility. Colleges and universities owe it to their students to review and investigate each allegation of sexual assault professionally and thoroughly — prior to sending it forward to a panel hearing. While every case deserves investigation, not every case deserves a hearing.” He also took note of the fact that the “training” Yale provides its disciplinary panelists remains secret.

The Hostage-Video Statement

In the aftermath of 30 for 30’s “Fantastic Lies” documentary profiling the Duke Lacrosse case, it’s hard not to focus on the differences in the campus atmosphere between then and now. During the lacrosse case, the students were the voices of reason—from the student government, to the student newspaper, to students who registered to vote against Mike Nifong. And perhaps the highest-profile student action came from the Duke women’s lacrosse team, in the 2006 national semifinals, who said nothing but wore armbands with the number 6, 13, and 45—the numbers of the three falsely accused men’s players.

Doubtless the Brodhead administration did not welcome this move—the Duke president, after all, had a month before suggested privately that a movie in which an accused murderer fooled his lawyer into believing his innocence was a good frame for the case. But Duke allowed the silent statement to proceed. And students in general were either supportive of or neutral toward the women’s lacrosse team members.

In 2016, the Yale men’s basketball team made a nearly identical, silent statement. They said nothing, but wore warm-up shirts with Montague’s number and nickname. Here, however, the campus backlash was furious. Unidentified students posted flyers accusing the team of defending “rapists.” Yale’s dean issued a statement that seemed to condemn the basketball team. Student reaction toward the team seemed overwhelmingly negative. And the team then issued a statement that came across as a written version of a hostage video, filled with buzzwords more common from Title IX officials than a typical college student, apologizing to the campus community.

There’s scant reason to believe that the Yale Daily News is up to the task that the Duke Chronicle performed so ably in the lacrosse case. Rather than examine whether the basketball players were inappropriately pressured to issue the hostage-video statement—and, if so, what such pressure would say about the intellectual environment at Yale—a long article in Monday’s Daily News broke the news that members of the team still spoke with Montague.

The piece also contained lengthy quotes from campus rape groups criticizing Stern. In their own words, reporters Daniela Brighenti and Maya Sweedler wrote, “Stern’s reasoning drew criticism from experts, victims’ advocates and sexual assault survivors, who argued that the language Stern used in the statement blames victims.”

But such standards—which essentially conflate the experiences of battered women in long-term relationships, who are often emotionally and financially dependent on the men who abuse them, with college students who engage in brief sexual relationships—render it impossible for any accused student to defend himself. If any behavior or evidence undermining the credibility of the accuser (who often, as appears to be the case here, is the only witness suggesting the accused student did anything wrong) can be dismissed as typical conduct of a “victim,” then all behavior confirms the accusation, and the accused must be found guilty.

Railroading the Innocent in Cincinnati

By KC Johnson

The University of Cincinnati has a fascinating response to a recent lawsuit filed by two students alleging serious misconduct by UC and several of its administrators in sexual assault proceedings: “Even accepting Plaintiffs’ allegations as true, they received constitutional due process protections.”

Since UC informed them of the charges, and gave them a hearing, courts can do nothing—no matter the extent of the hearings’ biases, and no matter how indifferent to the truth the university was. That such an argument could come from an institution of higher learning is appalling—but, by this point, not surprising.

The lawsuit, which you can read here, involves two separate cases—one filed by a former UC undergrad (who then transferred) and the second by a former UC law student (who has since graduated). The first case involved a claim that the male student sexually assaulted two female students (in the same room). In a relative rarity in campus proceedings, the accusers also filed a complaint with police—who promptly uncovered significant evidence that undercut their stories.

No Due Process, Thanks

One claimed, for example, that she didn’t know how the male student got into her dorm, but videotape showed her standing by as the second female student signed in the male student to the dorm. She claimed not to have used marijuana, only to later admit that she had. She claimed that the male student got into her bed without her knowledge even though she had previously told police that she had undressed in front of the male student, gotten into her bed, and then he quickly joined her in bed.

The other student alternatively claimed to have been passed out and not passed out during the alleged assault, and claimed to have been passed out at a time that the police uncovered her sending text messages. Explosively, one of the detectives investigating the case testified that his colleague believed that UC had “obstructed” the flow of the investigation, seemingly to minimize the accusers’ credibility problems, and that UC’s general counsel “was trying to impede our train of thought and our investigation.”

UC nonetheless found the accused student guilty of sexual assault. It did so after an almost comically biased procedure. A UC administrator informed the accused student, “Neither party has any burden of proof.” (This assertion misstated UC regulations; even the preponderance of evidence threshold, which UC uses, imposes a nominal burden of proof on the school.) The accused student went before a disciplinary panel trained with inflammatory, unsubstantiated allegations such as, “The average rapist rapes 14 people before he ever spends a night in jail,” or “1 in 4 women will survive rape and/or sexual assault during her time in college.” See citations to the discredited David Lisak’s work on undetected rapists and misstatements of UC policy (the training asserts that consent needs to be “verbal and “ongoing,” and that the female student must be “sober,” even though UC’s actual policy contains no such requirement).

Male in Mattress Case Sues Columbia

An accompanying guide from the UC judicial office repeatedly labels accusers as “survivors” (“All reported sexual assaults will be taken seriously and every effort undertaken to assist survivors”)—even though, of course, at the time of the report, there’s an accuser and an accused, not a “survivor” and a perpetrator. Such sloppy use of language presumes a crime before any investigation occurs. It’s no wonder that since 2010, in every case for which a resolution is available, UC has found students accused of sexual misconduct guilty.

The accused student asked to record his disciplinary hearing; UC refused permission. UC policy prohibited him from directly cross-examining his accuser; questions that he submitted for asking went unexplored by the panel. The hearing panel refused to examine either the surveillance video of the students walking into the dorm or text messages from the accusers’ phones. The guilty finding seemed predetermined. He successfully appealed within the university, only to see the cases return to the same panel, which reaffirmed a guilty finding regarding one (but not, oddly, both) of the accusers.

Daniel Cummins, director of UC’s office of judicial affairs, informed the second student who was enrolled at UC’s law school that “a preponderance of the evidence burden of proof applies. Neither the complainant nor the respondent bears this burden of proof in an ARC hearing.” That UC’s chief disciplinary officer doesn’t understand what the preponderance of evidence requires speaks volumes as to the university’s unfairness.

Cummins handled the second case in other odd ways. Even though the alleged sexual assault occurred off campus, he insisted on having the UC disciplinary process hear it. Based solely on the filing of allegations, he informed the accuser’s thesis advisor that the student “has recently been the victim of behavior that violates our sexual harassment policy.” (This revelation suggested he had made up his mind before even speaking to the accused student.) The accused student also faced an interim punishment—including a prohibition on entering the library—based solely on these uninvestigated allegations.

More Extreme Procedures Coming?

During the hearing, one of the panelists scribbled a note that reflected the contemptuous approach often seen toward due process at the campus level: “Also ->this is NOT a court. We don’t have to do things like in law school.” The accused student was found guilty, and appealed. This appeal, too, was granted—and the case then remanded back to the same panel that had found him guilty in the first place. The second hearing featured the accuser attacking the accused student as a rapist and then storming out of the room before even UC’s permitted cross-examination could occur. The panel again returned a guilty finding.

UC retorted that none of this really matters—that the university only was obligated to hold a hearing and to inform both students of the charges against them, obligations that UC fulfilled. A fair process that might determine the truth, UC filings suggested, is beyond the legal obligations for any university. (Left unsaid was why a university wouldn’t want such a process.) UC purports to concede, citing relevant 6th Circuit precedent, that “a public university student who is facing serious charges of misconduct that expose him to substantial sanctions should receive a fundamentally fair hearing.”

But to justify its denial of basic fairness to the two students in these cases, the university relied on Jackson v. Dorrier, a 1970 case involving a high school policy prohibiting male students from having long hair. (“To hold that the relationship between parents, pupils and school officials,” the 6th Circuit ruled, “must be conducted in an adversary atmosphere and accordingly the procedural rules to which we are accustomed in a court of law would hardly best serve the interests of any of those involved.”)

It’s remarkable that UC could consider a grooming policy for high school students to be somehow relevant to whether a college student is entitled to fundamental due process when facing a life-altering sexual assault allegation. But perhaps not too surprising: UC also contends that even if its policy placed the burden of proof on the accused (which university briefs somewhat ineffectively denied), doing so “would not compel a finding that due process was violated.” Ponder that again: a public university has publicly affirmed that a policy that presumed students guilty of sexual assault would be constitutionally acceptable.

The university also justified its decision to impose interim punishments on students accused of sexual assault, on grounds that “federal regulations require the University to offer such [interim] accommodations or interim measures to victims of sexual assault” [emphasis added]. At the interim stage, of course, there is no victim—there’s an accuser and an accused. And Cincinnati’s filings also claimed that the Dear Colleague letter “directed” it to follow certain procedures, even though two high-ranking Education Department officials conceded last year that departmental guidance letters were just that—guidance, not obligations on universities.

UC seems to go out of its way to envision its undergraduates and even law students as the equivalent of high school students. For the proposition that it’s OK to deny students accused of sexual assault any right to cross-examine their accuser, the university cited a 2014 6th Circuit case involving a high school freshman. And for the proposition that it’s OK to deny students accused of sexual assault meaningful right to cross-examine their accuser by requiring questions to be funneled through a panel that might modify or simply ignore them, the university cited a Connecticut case involving a high school senior.

Since UC sees its students as glorified high schoolers, perhaps parents would be better off sending their children to another university.


KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

What Candidates Can Do For Higher Education Now

By Peter Wood

In 2014 Senator Marco Rubio lent his support to CASA, the Campus Accountability and Safety Act—the effort by Missouri Senator Claire McCaskill and New York Senator Kirsten Gillibrand to strip the due process rights of students accused of sexual assault.  The bill died that year but McCaskill and Gillibrand brought it back in 2015, and Senator Rubio renewed his support.

It is a terrible piece of legislation, and one that no reasonably informed observer of higher education who cares about the rule of law and individual rights on campus could support. Yet one of the mainstream GOP presidential candidates co-sponsored it, presumably because he calculates that it is “good politics” to be able to say he opposes “rape culture.”

Related: Gillibrand Revised—Still No Due Process

This one instance of many testifies to how little attention our leading candidates pay to higher education. Americans, however, have been shocked to see students at Dartmouth, Princeton, Yale, and other elite institutions protesting against free speech—and college presidents bowing down before little ripped-jeans, tuition-subsidized junior-league totalitarians.   Now would be a good time for some presidential candidates to come up with a real program for reform.

So far, the only candidates to propose anything noteworthy are Bernie Sanders and Hillary Clinton.  Sanders has floated a $47 billion proposal to eliminate undergraduate tuition at four-year public colleges and universities. Clinton has countered with a “New College Compact” that would spend $350 billion over ten years to eliminate student loans.

Making college an entitlement may appeal to some voters, but it would do nothing to end the open hostility to free inquiry that marks our campuses now. Here are some suggestions for how to take back the campus from those who are intent on making it a 24-7 taxpayer-subsidized indoctrination camp:

  1. Respect freedom of thought and expression. Colleges and universities should demonstrate commitment to these freedoms. They should, for example, establish independent standing committees on free expression. College leaders need to stand up against movements that try to turn academic freedom inside out by justifying mob action and intimidation as “free expression.” If they prefer instead to shelter students in “safe spaces,” they forfeit any claim to public respect—and public support.

Related: How Political Correctness Corrupted the Colleges

  1. Treat men and women equitably. Amend Title IX of the Higher Education Act, which was originally enacted to ensure that women in college had equal opportunities. It has been twisted over time by bad court decisions and radical feminist regulators to justify denying men due process, cutting men’s sports, and reducing men to a minority group on most campuses.

Curtail the Office for Civil Rights in the Department of Education which has, without Congressional approval, churned out regulations on the unwarranted premise that sexual assault is a form of “discrimination” covered by Title IX.  Sexual assault is a crime, best handled by the police and the courts, as Bernie Sanders has just said. Endorse the Safe Campus Act, which allows a college to conduct its own inquiry into a reported sexual assault only if the alleged victim consents to an investigation by law enforcement.

  1. End higher education’s destructive focus on race. Presidential candidates should join the majority of Americans who oppose racial preferences in hiring and college admissions. This may be a long fight. A good first step would be to expose the sheer extent of these preferences by passing legislation that requires colleges and universities to disclose them in detail by publishing admitted students’ standardized test scores and GPAs, broken down by race.
  1. Fix the student loan debacle. First, end the perverse incentives by which the government actively encourages students to take on unnecessary debt. Prompt students to think carefully about their college choices by favoring loans that go towards programs that meet national needs and that possess academic rigor. Cap each student’s total borrowing for tuition and other college expenses. Make colleges partly liable for student loan defaults.  Create federal incentives for three-year programs and the $10,000 B.A. pioneered by Texas.

Related: Making a Bigger Mess of Student Loans

  1. End federal cronyism in higher education. Bust the accrediting cartel, which impedes competition by hindering the creation of new colleges and online education. End the cozy relationship between the government and the College Board, a private monopoly that has compromised academic standards via its politically correct changes in the SATs and the Advanced Placement history courses.
  1. Restore the integrity of the sciences. Require the National Science Foundation and other federal funding bodies to spend research dollars on research, not public advocacy. End sycophantic science—the bribing of scientists to produce “findings” meant primarily to advance political causes. Pass the Secret Science Reform Act which would require universities to disclose the data and the manipulations behind publicly-funded research.  (The data behind Michael Mann’s infamous “hockey stick” graph, first published in April 1998, is still) Science that can’t be replicated isn’t science.
  1. Enhance the curriculum. Colleges should be free to decide what courses they offer and how these add up to a college degree, but our political leaders can reasonably exhort college leaders to set meaningful requirements and to offer students a coherent curriculum that includes core subjects such as Western civilization and American history.

Related: Emptying Content from College Courses

These steps would serve everyone, rich and poor, of every ethnicity, and would just as importantly serve America. We’ve allowed many of our colleges and universities to decline into little more than servants of progressive politics. But higher education should never be political indoctrination, welfare for special interests, or back scratching for politicians. It is time for a principled candidate to say “Enough!” and to take concrete steps to restore higher education to the nation’s colleges and universities.


 

Peter Wood is President of the National Association of Scholars.

 

How Title IX Became a Policy Bully

By KC Johnson

The Chronicle of Higher Education has received a good deal of attention for putting together a website cataloguing all the Title IX complaints currently pending with the Obama administration’s Office for Civil Rights (OCR). But the site should mostly be seen as a concrete demonstration of how little we know about these complaints, and how poorly the media as a whole has done in covering this issue.

Even before the issuance of the “Dear Colleague” letter in 2011, a marriage of convenience had developed between OCR and campus activists eager to weaken due process for students accused of sexual assault. In contrast to the Bush administration, OCR made clear by implication if not openly, it would welcome Title IX complaints, as a bludgeon to pressure universities to change their policies—if only the activists would file such complaints. And so local activists, increasingly organized by groups such as Know Your IX, SurvJustice, and End Rape on Campus, started filing complaints.

Related: The Hunting Ground—An Ethically-Challenged Tainted Documentary

The Title IX complaint against Yale—which produced the grossly unfair procedures that ensnared, among others, Patrick Witt—was the first example of this new process in action.

The only university that appears to have resisted OCR pressure was Tufts, and it did so only briefly, before backing down. The combined threat of bad publicity and a loss of federal funds—coupled with the fact that many on campus agree with the activists’ anti-due process agenda—has explained the remarkable academic passivity to this federal overreach.

OCR has followed the highly unusual strategy of releasing the names of colleges or universities under investigation, but refusing to release any of the details as to what prompted the Title IX complaint. And so, over and over again, the Chronicle website has lines such as these: “Sexual assault gained attention on the campus when the Office for Civil Rights notified leaders [and, of course, the public] in October that it had launched an investigation.”

OCR hasn’t explained why it has pursued this shaming strategy—whose only purpose seems to be to heighten the frenzy about the campus sexual assault issue and invite the media to assume the worst.

Related: Three Men Unfairly Branded as Campus Rapists

It’s not as if the agency doesn’t eventually release most of the details of complaints. Take, for instance, one of the most recent resolution letters, involving Michigan State University. There, once the matter was resolved, OCR published in some detail (without revealing the complainants’ identities) the initial allegations against the school. (In both instances, accusers claimed that the university had waited too long to investigate the charges, one of which was deemed baseless.)

OCR spares no details in these resolution letters: in the Michigan State case, for instance, the resolution letter included such unique details as the following: “In November 2010, during the investigation, Student A encountered the two male students in a University building where all of the students studied. The two male students were sitting in a private tutoring room with their tutor. While the door was closed, Student A could see the male students through a glass panel in the door. Student A remained outside the male students’ tutoring room for approximately 30 minutes.

When the male students were finished with their tutoring session, they left the room and walked past her to exit the building. Student A called the police to report that the male students had violated their PPOs by not leaving the building when she entered it. Student A stated that the male students were supposed to stay 500 feet away from her, but that the police had told her that the 500-foot rule has exceptions. After this encounter, the male students were assigned to a specific study area in the building that was separate from Student A’s study area and required them to use a separate entrance from the general student body.”

Related: The NY Times Reveals the Stupidity of ‘Yes Means Yes’

(This burden was placed on these two students, who also had been reassigned to a remote dorm on campus, even though the allegation was unfounded.)

This level of specificity, of course, ensures that those who knew both the accuser and accusers on campus would likely now learn about the sexual assault allegation. If the agency plans to release such details eventually, why not right off the bat? Perhaps because it sounded much worse to hear “Michigan State Under Title IX Investigation” than to learn that the allegation was that the school took long to conclude that an unfounded sexual assault allegation was, in fact, unfounded—and that the accused students had done nothing wrong.

An administration committed to transparency should release the details of the allegations, so the public could decide for themselves the seriousness of the Title IX complaints. That the Obama administration has chosen not to do so—as the Chronicle website helps to demonstrate—only compounds its bad faith on the issue of campus due process.


 

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.

 

Expel 10 If One or Two Are Guilty of Rape?

At a House oversight hearing last week, Representative Jared Polis (D-Colorado) seemed deeply troubled by two arguments raised by FIRE’s Joseph Cohn: that trained police, rather than campus bureaucrats, are better equipped to investigate felony offenses; and that the current campus tribunals deny meaningful due process for students accused of sexual assault. In response, Polis asserted, “If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”

The Colorado congressman has now retracted parts of that assertion, in an op-ed that raises more questions than it answers. Polis writes that he “misspoke” when he “went too far by implying that I support expelling innocent students from college campuses, which is something neither I nor other advocates of justice for survivors of sexual assault support.” (Polis doesn’t explain why, if that’s the case, campus rape activists in the audience applauded his remarks.) But his chief justification for his policy shift appears to be tactical: He states that his “remarks have detracted from the substance of this debate.” (In fact, the activists’ applause provided a remarkable, if chilling, clarifying moment.)  Moreover, his op-ed leaves the impression that he simply spoke hastily or emotionally in a “back and forth exchange” the hearing, even though he reiterated his position afterwards in an e-mail conversation with Reason’s Robby Soave. Did he misspeak (or, I suppose, “mis-write”) to Soave, as well?

It appears, nonetheless, that Polis no longer believes that colleges should expel ten students accused of sexual assault if only one or two of them is guilty. But what about his other hearing statements?

Polis’ retraction comes in a defiant op-ed in which he expresses strong opposition to the concept that police, rather than campus bureaucrats, should handle the investigations of campus sexual assault. This is, he writes, a “deeply dangerous idea that demonstrates a cursory and superficial understanding of the issue.” (The congressman doesn’t say if he believes that campus bureaucrats should handle other serious student-on-student felonies, such as attempted murder or felony assault.) He also defends the Obama administration’s insistence that these campus hearings use the preponderance-of-evidence threshold.

In the hearing, Polis mused that colleges could use an even lower burden of proof—“reasonable likelihood,” which he defined as 20 or 30 percent chance of guilt. Does he still believe this? His op-ed doesn’t say.

In the hearing, Polis minimized the stakes for students accused of sexual assault. “For crying out loud,” he chuckled sarcastically, the worst that could happen to a falsely accused student would be transferring to another institution. Does he still believe this? As Eugene Volokh pointed out, Polis’ statement seemed either supremely cynical or flat-out misleading—since it would envision universities simply passing around actual rapists, or would involve Polis deliberately minimizing the difficulty of a transfer (not to mention subsequent employment opportunities).

Finally, Polis offers a new argument in his op-ed. “For those of us also concerned with the rights of the accused,” he writes, “dragging their name through the newspaper as an accused rapist through a criminal justice process will haunt them forever, even if they are found not guilty.” It’s heartening to see that Polis has suddenly discovered a concern with the rights of the accused. He oozed contempt toward Cohn, the only witness at the hearing who focused on due process for accused students; indeed, he suggested at the hearing that due process was irrelevant, since the accused student couldn’t be jailed by his college. (In his op-ed, he equates Cohn’s position with that of “most people who don’t know much about this issue”—an odd position for this newfound champion of rights of the accused to take.) In the event, Polis reiterated his belief that due process wasn’t the appropriate framework to consider the issue in his post-hearing e-mail discussion with Soave. Does he now repudiate that, as well?

Yet Polis’ only defense of the accused students’ due process—that the rules of campus disciplinary matters will keep their names out of the newspaper—is nothing short of extraordinary. The secrecy of campus tribunals provides no protection for the accused student; indeed, the secretary undermines due process. The closed nature of campus tribunals means it’s almost impossible for the media to discover (or the campus community to understand) that universities are branding students rapists after processes in which the accused student lacks meaningful representation from a lawyer, can’t cross-examine his accuser, and often has no right (or ability) to exculpatory or impeaching evidence.

Indeed, if I could recommend only one reform of the campus disciplinary process, it would be making hearings open to the public, to expose the kangaroo courts for what they are. As Louis Brandeis maintained, sunlight is the best disinfectant. It appears as if Congressman Polis, on the other hand, prefers the darkness.

U. of Michigan Screws Up in ‘Rape’ Case

On Friday, a federal court filing revealed that University of Michigan had settled its lawsuit with Drew Sterrett. The case, first exposed by Emily Yoffe in her sensational Slate article, featured Michigan branding Sterrett a rapist despite overlooking critical exculpatory evidence (including from the roommates of Sterrett and the accuser) and very troubling conduct by the Michigan bureaucrats who conducted the investigation. Yoffe  returned to the question in an excellent summary, hearing from both sides, of the conclusion to the case.

News of the settlement was first reported by David Jesse, of the Detroit Free Press. Jesse’s article could serve as a case study in how poorly the mainstream media covers campus sexual assault. A Free Press reader who didn’t read Yoffe or didn’t pore through filings on PACER would come away believing that Michigan had somehow wronged the accuser, and not Sterrett.

The article noted the terms of the settlement (setting aside of the university judgment, Sterrett agreeing to transfer, and a mutual non-disparagement clause). As already seen in settlements by Xavier, St. Joe’s, and DePauw, universities settle due process lawsuits not from the goodness of their hearts, but when they’re worried about losing. But Jesse provided none of this context—by, perhaps, interviewing a law professor. Indeed, the article didn’t even mention that Judge Denise Hood (despite seeming desperate to accommodate the university’s position) had kept alive Sterrett’s due process claim that “he was denied a meaningful hearing” by the university.

Indeed, a reader of Jesse’s article would have had no idea of the central issues in the lawsuit. Sterrett—as Yoffe’s article best explained—alleged that the university’s deeply flawed procedures (which included not telling him of the specific charges against him and pressuring him not to consult a lawyer) produced a flawed result (which included overlooking key third-party evidence that contradicted the accuser’s tale). Jesse mentions none of this, and instead offers seven sentences about whether or not Michigan encouraged the accuser to file a police report—an incidental element in Sterrett’s suit.

Sterrett’s lawsuit brought to the fore more evidence missed by Michigan. While the university’s judgment relied on two of the accuser’s friends, who said she told them that she tried to push Strerrett off of her, she admitted under oath in a lawsuit deposition that she had said no such thing. Yet Jesse risibly implies that Sterrett wanted to cover things up: the settlement, the Free Press reporter writes, means Michigan “cannot do any further investigation into the case.”

Jesse includes three paragraphs of comments from the accuser, to whom he grants the cloak of anonymity, denouncing the settlement. And he adds another three paragraphs, with similar sentiments, from the accuser’s attorney. The accuser—after a process that Michigan so distorted in her favor that the university ultimately couldn’t defend it in federal court—has now threatened to file a Title IX complaint.

Finally, the original version of Jesse’s article improperly claimed that Michigan found that Sterrett had committed a “rape.” The fiction of the university process, of course, is that schools pretend that they’re only addressing a college disciplinary code violation when they investigate rape allegations.

Other than each of these matters, the piece was a model of journalistic objectivity.

Education Department Rewards False Complaints of Abuse

The Education Department, where I used to work, is becoming more and more extreme in how it misinterprets and misapplies federal law. For example, the Education Department has thumbed its nose at federal court rulings by wrongly creating entitlements for people who make false discrimination and harassment complaints—even though such baseless complaints can make life miserable for the victims of such false allegations (and cause serious problems for the institution they work for or attend).

Federal judges have ruled that people who lie and file sexual harassment charges over conduct they falsely claim was unwelcome can be disciplined, in cases such as Vasconcelos v. Meese (1990). But in a recent Title IX investigation of Michigan State University, the Education Department required university officials to offer “remedies” to “Student A,” whom both it and the University found had made a false allegation of sexual assault against two students.

The Education Department’s strange logic was that the university did not begin proceedings against the accused students fast enough (even though it immediately kicked them out of their dorm and ordered them to stay away from the accuser).

The brief delay in the investigation was not because the university was indifferent to sexual abuse; it was because the complainant decided not to file formal college charges against the accused (the criminal justice system found her complaint so unsupported by evidence that the accused were never charged, and she declined to pursue formal charges at the college level). It is absurd to demand swift college prosecution of innocent people when the accuser herself does not demand it.

The accused students, whose lives were transformed for the worse by the charges, were innocent, under the Education Department’s own admission. The university investigator ultimately found their conduct was welcome, and thus not sexual harassment or assault. Moreover, the Education Department’s Office for Civil Rights (OCR) itself noted in pages 30-31 of its investigative report that “OCR’s review of the investigator’s report and his supporting documentation led OCR to conclude that the preponderance of the evidence did not support a finding that Student A was subjected to unwelcome sexual conduct that created a sexually hostile environment.”

Yet, the Office for Civil Rights argued that the college should “remedy” the imaginary harm caused by its failure not to process her false complaint faster. On pages 40-41 of its report, it mandated that “under the terms of” its agreement with the university, the university will contact Student A and “offer” her “remedies to address any harm incurred as a result of the University’s delay in processing [her] complaints,” which might involve things like paying for counseling, providing academic assistance, or letting her retake a class she was enrolled in during that period.

This curious demand by the Education Department raised eyebrows even at left-leaning publications such as the Chronicle of Higher Education, which noted that “the department’s 42-page letter outlining its findings is an illustration of just how difficult it can be for colleges to comply with the [administration’s] beefed-up interpretation of . . . Title IX.”

As a Chronicle reporter observed, after Student A complained to police and the university hospital of being assaulted, the university took immediate action to protect her, by kicking the accused students out of her dorm the next day, moving them “into a different dormitory,” and by “telling them to avoid social gatherings and not to contact Student A.”

Such actions against people accused of harassment or assault are known as “interim measures,” since they are temporary measures imposed on people even before they may be found guilty, and even though they later may be found innocent. Such measures can raise serious due-process issues when they last for a long time; are based on very dubious charges; or inflict serious financial or educational harm on the accused. Yet the Education Department has told some colleges to impose such measures as a matter of course whenever assault or harassment are alleged.

The university did not ignore any complaint from the accuser. Indeed, as the Chronicle noted, Student A herself did not even “file a sexual-harassment complaint with the university”:

Days after Student A reported the assault, the county prosecutor’s office announced it would not press charges against the accused students. Student A then told Michigan State she had decided not to file a sexual-harassment complaint with the university, saying she was mainly concerned about running into the men in their residence hall (they’d been reassigned by this point). She got . . . personal-protection orders forbidding the two male students to follow her or to communicate with her, among other things. University staff members met with the male students to make sure they understood what they were allowed to do.

After all that, university officials considered the matter closed.

But when the Office for Civil Rights got wind of media reports about the alleged assault, it reached out to Michigan State and “offered technical assistance.” Soon after, the university began an outside Title IX investigation to determine if the alleged assault had violated its sexual-harassment policies, even though the student had still not filed a formal complaint. . .

The outside investigator finished work at the end of 2010, and determined that there was not enough evidence to suggest the university’s harassment policy had been violated. The Office for Civil Rights agreed, saying in Tuesday’s letter that the investigation was “thorough and adequate” and that evidence did not support the claim that Student A had been subjected to unwelcome sexual conduct.

Since Student A’s complaint was untrue, and the college immediately shielded her from exposure to the accused (protecting her from any potential retaliation), it is hard to fathom what possible harm the Education Department thinks she could she have experienced from the university not investigating her charges faster. Presumably, she would not have benefited from the university deciding even sooner that she was not telling the truth.

Indeed, its discovery that her charges were unfounded may have undermined any basis she might otherwise have had for extending the no-contact orders she obtained against the men falsely accused, and for excluding them from shared areas on campus. Indeed, this might have been the very reason she didn’t ask for, and apparently didn’t even want, the formal investigation that the Education Department wanted the college to bring even faster.

In short, contrary to what Education Department suggested in its investigative report, there is no reason to think there was any harm to Student A from the university’s “delay” in formally “processing” her accusation. And there is logically no way to “remedy” a non-existent harm. Yet, its investigative report requires MSU to contact Student A to offer her “remedies” for that “delay.”

Troublingly, this is not the first time that the Education Department required remedies for a student who apparently made a false accusation. In a 2014 letter announcing the results of its investigation of Tufts University, it complained that the university allowed in certain evidence of an accused student’s innocence, leading to Tufts finding him not guilty of sexual assault, rather than excluding it as untimely or inadmissible.

For example, it criticized Tufts for “allowing the Accused to submit an Addendum” responding to the charges after the deadline, and letting him show the complainant lied about her medical history, which he obtained by pretending to be a medical student. To resolve the investigation, Tufts had to pay the complainant “monetary compensation,” even though the agency never stated that she was sexually assaulted, and even though it lacked the legal authority to award monetary damages.

The Education Department also found Tufts in violation of Title IX because it took over a month before “requiring the Accused to move out of the residence hall,” and left her to attending a class “together with the Accused” rather than barring him from that class, which “thus exposed” her “to close physical proximity to the Accused.” But if the accused was not guilty of sexual assault, then he was not dangerous, and the complainant had no right to demand that he be excluded from his classes and dorm.

The Education Department’s demands are impossible to square with well-established case law. No court has ever found an institution in violation of Title IX, or any federal law against sexual harassment, for failure to remove an accused person from proximity to the complainant when the accused was not actually guilty of sexual harassment. Indeed, courts often rule for institutions sued for harassment even when the accused individual was guilty, and the institution either never removed the accused from proximity to the complainant (even after disciplining him) or only removed him after he was found guilty.

The Education Department’s position is illogical, and puts institutions in a difficult bind. Forcing an institution to tolerate false charges could theoretically subject it to a risk of liability in a lawsuit brought by the defamed individuals: Courts have recognized that sexual slander and smears can sometimes create a sexually hostile environment in violation of federal law in cases such as Jew v. University of Iowa (1990) and Spain v. Gallegos (1994), at least where the slander is based on sexual animus.

The Education Department’s Office for Civil Rights has discouraged colleges from allowing cross-examination by the accused, even though the Supreme Court described cross-examination as the “greatest legal engine ever invented for the discovery of truth” in Lilly v. Virginia (1999), and even though a few court rulings have required colleges to allow cross-examination, such as Donohue v. Baker (1997).

Education Department officials have also sought to gut the presumption of innocence. The Yale Law Journal noted in 1987 that “courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” But in an April 4, 2011 “Dear Colleague” letter, the Office for Civil Rights ordered colleges not to use that longstanding standard.

In a fashion reminiscent of double jeopardy, the Education Department has also forced colleges like Southern Methodist University to review all past complaints they dismissed in prior years (even when those dismissals were not challenged by any complainant), and resolve them to the agency’s liking—potentially resulting in expulsion of a student previously found not guilty.

Its Office for Civil Rights has also sought to redefine constitutionally protected speech as verbal “sexual harassment.” For example, it has told schools to regulate off-campus conduct (apparently including speech on the “internet”), which are beyond Title IX’s reach under decisions like Roe v. St. Louis University (2014); and it pressured Tufts University to regulate academic speech not even “directed at” the complainant (creating serious First Amendment problems under the 2010 Rodriguez decision).

Office For Civil Rights Goes After Michigan State

However harmful the effects of the “Dear Colleague” letter to colleges and universities from the Education Department’s Office of Civil Rights, the document is a floor, not a ceiling, to OCR’s efforts to weaken campus due process. Resolution letters between OCR and various universities have allowed the agency to go well beyond the “Dear Colleague” letter’s terms. The Yale letter approved the “informal” process that allowed the university to brand a student a rapist without the accused having an opportunity to present evidence of his innocence. SMU and SUNY letters authorized the re-opening of cases where the accused student had been found not guilty, and oozed contempt for the idea that trained law enforcement personnel, instead of campus Title IX bureaucrats, should investigate sexual assault allegations. (Hans Bader has analyzed other resolution agreements, such as that with Tufts.) And the Montana letter envisioned a “blueprint” to weaken free speech on campus.

OCR’s most recent target, Michigan State, opens up a new inroad in the assault on campus due process.

Student A

A student identified only as “Student A” reported her alleged assault to the police, but not to the university, which instead learned about her allegations through media reports. The allegations weren’t very credible, as the police never filed charges. Nonetheless, when OCR discovered the charges, it told MSU that it needed to independently investigate the allegations. The university’s own investigation reached the same conclusion as the police—the accuser’s claims were not credible.

MSU nonetheless punished the accused students. As its investigation proceeded, the university forbade the accused students from contacting the accuser, and moved them out of their rooms to a different dorm, apparently well away from the accuser’s area of campus—which addressed the main concern the accuser said she had. The accused students apparently didn’t try to re-enter their old dorm, and the dorm to which they were reassigned was (according to the OCR letter) far away from their dining hall and their classes.

The accuser nonetheless cited the move in a Title IX complaint to OCR, apparently operating from the premise that students accused of sexual assault should be kicked out of all dorms, whether or not the accused students were guilty, and before any investigation had occurred. The accuser also claimed that the accused students violated a no-contact order—because, she reported, she had entered a university building and peered into a private tutoring room (through a glass panel in the door), where she spied the accused students meeting with a tutor. For reasons unexplained, she then stood outside the closed door for 30 minutes. There’s no evidence the male students saw the accuser until they left the room, but she interpreted their encountering her—after, to reiterate, she waited 30 minutes in a hall directly outside a room in which they were studying—as a violation of the no-contact order.

Even OCR conceded that this episode—which was, after all, directly initiated by the accuser—could not be held against the accused. That such an episode formed a key element of the accuser’s Title IX complaint demonstrates why reporters should be very skeptical when OCR reveals there’s a Title IX inquiry against a school, but refuses to release the actual complaint so outsiders can see the specifics.

Despite the record, OCR concluded that MSU had violated Title IX in its handling of Student A’s case, because the university took too long to conclude that Student A’s allegations were unfounded. This delay in initiating an investigation (based on a complaint the accuser never filed with the school) violated Title IX. OCR also expressed concerns about the structure of MSU’s policies, which at the time “required that a disciplinary hearing be conducted by the student judicial body before any action could be taken against a student accused of sexual harassment.” But the agency didn’t find a Title IX violation here, since by the time of the resolution letter, the disciplinary hearing requirement (which should, in fact, be an obvious form of due process) had been eviscerated.

To reiterate: Student A’s allegations proved unfounded, and she never filed a complaint through the university process.

The Campus Climate

As described in the resolution letter, Michigan State is a university whose leadership is obsessed with sexual assault. (According to Clery Act figures, there were 27 reported sexual assaults in 2013 at MSU, from an enrollment of about 35,000 students.) In 2013, the university initiated what it called a “No Excuse for Sexual Assault” campaign, designed in part, according to the OCR letter, “to debunk common myths regarding sexual assault.” MSU “distributed posters with images and messages intended to dispel various myths regarding sexual assault”; handed out shirts, stickers, buttons, and brochures with the slogan at various university events; developed a “No Excuse” Facebook page; created a special help line for students who wanted to report a sexual assault; and translated all of these materials into different languages—including Korean, Arabic, and Chinese. Students interviewed by OCR recalled these initiatives, along with material from the two required training sessions on sexual assault directed at all incoming students. (Athletes receive additional training.)

It appears that MSU’s training is creating some myths, rather than dispelling them. In a survey of all first-year and transfer students, 74.9 percent (incorrectly) said it was “false” that “someone can still give consent for sex if they are using alcohol or drugs.”

Yet to OCR, at Michigan State, a “sexually hostile environment existed for and affected numerous students,” while “the University’s failure to address complaints of sexual harassment, including sexual violence, in a prompt and equitable manner caused and may have contributed to a continuation of this sexually hostile environment.” The agency seemed troubled by findings (from campus surveys) that students would be more likely to report sexual assault to the police than to the university office that handles college investigations—as if, somehow, this is a bad thing. The resolution letter also went out of its way to include extraneous comments from random students: “OCR heard,” for instance, that a student had reported being raped at a fraternity shortly before the investigator came to campus. Well: Had she? Though this information presumably would have been very easy to ascertain, OCR investigators seemed uninterested in finding out. Another: “Many students referenced a walkway on campus near the river (the river trail) as being routinely referred to by students as the ‘rape trail.” This sounds ominous, until OCR informs us that this reputation dated from events in the 1970s or 1980s—that is, before 99.99 percent of MSU’s current undergrads were born.

Finally, OCR considered it a sign of a troubled campus culture that “only 7.4% of students were able to correctly identify the name of the University’s Title IX Coordinator,” while “71.5% of the students surveyed correctly identified the University’s head basketball coach.” That this churlish item made it into an official letter from a federal agency is astonishing. Given that miniscule percentages of students know the identities of even high-ranking academic bureaucrats, I wonder how many students know the name of the MSU provost, or the dean of the humanities (who are, after all, a far more appropriate comparison group for the Title IX coordinator). It’s remarkable, in fact, that according to the survey, around 2000 MSU students know the name of a mid-level bureaucrat at their university.

And what of the language that “71.5% of the students surveyed correctly identified the University’s head basketball coach”? Michigan State actually has two head basketball coaches: Tom Izzo, longtime coach of the men’s basketball team (including in 2000, when his team won the national title); and Suzy Merchant, who in her eighth year has emerged as one of the Big Ten’s best women’s basketball coaches. The 71.5 percent figure obviously refers to Izzo; by describing the university has having only one basketball coach, OCR—the agency devoted to gender nondiscrimination in athletics—chose to overlook the women’s basketball coach to make its political point.

Policy Abandoned

In early 2012, during the course of the investigation, MSU abandoned its previous policy (which required a hearing) that vexed OCR, and replaced it with a modified version of the single- investigator model. Student allegations of sexual assault are directed to the Office for Inclusion and Intercultural Initiatives (or “I3”). A I3 investigator speaks with the accuser, accused, and any other relevant witnesses, looks at any evidence the two sides present, and then produces a report deciding whether it’s more like than not that the accused is a rapist. The accused student has no opportunity to cross-examine his accuser—indeed, he doesn’t even see the evidence compiled against him until the investigator produces his report.

Once the I3 investigator produces his report, the accused student can appeal to a hearing—but under very circumscribed conditions. At the hearing, the OCR’s resolution letter noted, “neither side can ask questions of each other”’—and the accused student now has the burden of proof, a burden that goes well beyond the preponderance of evidence. He must “show that the I3 decision was arbitrary and capricious or had procedural problems.”

Such a one-sided procedure unsurprisingly has produced one-sided results. The OCR letter reported that MSU administrators indicated “that they have not yet had a case where the administrator or hearing board believed that the respondent met his or her burden of proof.”

In more than three years, then, MSU’s procedure has never resulted in an accused student being found not culpable once an investigator has decided otherwise.

OCR’s response? Michigan State procedures tilt too heavily—in favor of the accused. The agency found “that the University has not provided a prompt and equitable grievance procedure for the resolution of student and employee complaints alleging any actions prohibited by Title IX.” Investigations, OCR sniffed, take too long—at 90 days, with an additional 30 days to write.

OCR also faulted MSU’s policies for failing to unequivocally state that “the University will take steps to minimize the burden on the victim” regarding “interim measures while the investigation is pending.” But, of course, while “the investigation is pending,” there is no victim—the allegation is alleged, not established.

Unlike the SMU and SUNY letters, the Michigan State resolution letter doesn’t explicitly endorse any new, troubling policies. But it sends a most troubling message: even a university with MSU’s one-sided campus climate, and with MSU’s one-sided policies, will be found in violation of Title IX by the current OCR.

No Due Process, Thanks—This Is a Campus

Here are two troubling developments regarding campus due process from the Upper Midwest:

Inside Higher Ed featured remarks from Susan Riseling, chief of police at the University of Wisconsin-Madison, regarding the intersection between campus police and Title IX responsibilities. Riseling told attendees at the International Association of College Law Enforcement Administrators conference that police chiefs should require all officers to read Jon Krakauer’s Missoula to better understand why victims distrust the system—even though only one of the accusers profiled by Krakauer was unequivocally a victim.

Then Riseling told a story of how the Wisconsin police had identified a student rapist on the basis of what he said in his Title IX hearing. (He had interviewed with the police, since the accuser apparently also filed a criminal complaint, but wasn’t forthcoming.) Police then subpoenaed the hearing records. “It’s Title IX, not Miranda,” Riseling boasted. “Use what you can.”

This remark revealed far more than Riseling intended. The chief offered a rare explicit celebration of what too often is implicit: lack of civil liberties protections is a desired aspect of college inquiries. The “advantage” of the disciplinary hearing process, it seems, is that accused students have minimal due process protections, and—since sexual assault is, of course, a crime—law enforcement can then use student disciplinary proceedings to obtain information that they could not, under the Constitution, in a normal police investigation. Civil libertarians might hope that Riseling will be rebuked for her cavalier attitude toward due process, especially in Madison, a city known for its defense of civil liberties. But I wouldn’t hold my breath.

Meanwhile, next door in Minnesota, the University of Minnesota has become the latest school to adopt an “affirmative consent” standard. The Star-Tribune interviewed FIRE’s Robert Shibley about how affirmative consent creates a presumption of guilt, and I echo his remarks. Two other points worth mentioning:

First, Minnesota provost Karen Hanson dismissed Shibley’s concerns on grounds that “we’ve still got tons of due process about these issues”—including the right to appeal. Really? The university’s appeal procedure is severely limited, and the “due process” that Hanson celebrates explicitly states that the appeals process “must respect the credibility determinations of the hearing body and must not substitute his or her judgment for the hearing body.” Other examples of the “tons of due process” that Minnesota supplies include: (1) the possibility of suspension based solely on an uninvestigated accusation; (2) have the right to cross-examine the accuser limited by “reasonable procedures to address concerns for safety or well-being”; and (3) describing the accuser (before the adjudication has finished) as a “victim/survivor.” “Tons of due process” indeed.

Second, the Star-Tribune article features interviews with numerous Minnesota students welcoming the policy changes. This hostility to basic civil liberties among the student body reflects a similar pattern that Stuart Taylor and I noticed at UVA after the Rolling Stone fiasco, and raises serious questions about the future attitude toward due process as these students become more active citizens in the near future.

Amherst’s Version of Kafka’s ‘The Trial’

Kafka was born too early to write about Amherst College. At campus hearings on claims of sexual assault, procedures are relentlessly stacked again males and evidence of innocence doesn’t count. Amherst expelled a student for committing rape—despite text messages from the accuser, sent  immediately after the alleged assault, (1) telling one student that she had initiated the sexual contact with the student she later accused (her roommate’s boyfriend); (2) inviting another student to her room for a sexual liaison minutes after she was allegedly raped.

Amherst, on grounds that the accused student (who, per college policy, had no attorney) didn’t discover the text messages until it was too late, has allowed the rape finding to stand, even though the college’s decision relied on the accuser’s credibility (which is now non-existent). Amherst faces a due-process lawsuit in the case. You can read the complaint here.

A Goal of Empowering Victims

The expelled student’s complaint begins by noting the hostile campus attitude toward due process—both from pressure from the Education Department’s Office of Civil Rights, and because of a highly-publicized 2012 article from a student and self-described “survivor” who claimed that the college mistreated her. (Wendy Kaminer summarized the case in The Atlantic.) The outcry prompted Amherst to cancel classes for a day to discuss the issue, led to the forced resignation of the college’s sexual assault coordinator, and caused Amherst to change its sexual assault adjudication procedures to focus on “empowering victims,” rather than on, say, pursuing fairness and justice in its hearings.

These procedures, unsurprisingly, are wildly one-sided. Amherst adopted an “affirmative consent” standard; its policies do not explain how an accused student can prove he obtained this consent short of video-taping any sexual encounter. Regarding alcohol, the school deems it important that “anyone engaging in sexual activity be aware of the other person’s level of intoxication.” (How this should be done, Amherst doesn’t say.) Awareness, the college adds, might not even be enough, since “an individual may experience a blackout state in which he/she/they appear to be giving consent, but do not actually have conscious awareness or the ability to consent. How an accused student is supposed to know that someone appearing to give consent is actually in a “blackout state” Amherst, again, doesn’t say.

An Attorney with No Role

Once the complaint is filed, an investigator, who lacks subpoena power, interviews the accuser and the accused student; beyond that, the college promises only that the investigator will make a “good faith effort” to speak to relevant witnesses, and will “try” to obtain relevant physical or medical evidence. If the investigator’s “good faith” effort doesn’t track down relevant witnesses, the policy presumes that the accused student won’t be able to call those witnesses before the hearing.

“Attorneys cannot participate in the Hearing Board process” at Amherst (although, the college helpfully notes, the accused student can hire an attorney—at his own expense—and have the attorney present on campus the day of the hearing, perhaps for a very expensive form of virtual, moral support). The attorney-less accused student does receive an “advisor” from the campus community, but this advisor “is not an advocate for the student.”

Amherst does not permit theaccused student to directly cross-examine his accuser; he can only submit questions to the panel chair, who may ask or reject the questions as the chair chooses. Effective cross-examination under such circumstances is all but impossible—even more so since the accuser is allowed to write responses, rather than respond to questions orally. Any guilty finding is “permanently noted on the student’s record.”

Ever Leaning Toward Guilt

Panel members, who are drawn from the Five Colleges consortium (Mount Holyoke, Amherst, Hampshire, and Smith Colleges, and the University of Massachusetts at Amherst), receive annual “training regarding, the dynamics of sexual misconduct, the factors relevant to a determination of credibility, the appropriate manner in which to receive and evaluate sensitive information, the manner of deliberation, and the application of the preponderance of the evidence standard.”

Amherst doesn’t reveal what this training entails (recall that the only school whose panel training did become public, Stanford, used blatantly guilt-presuming training). Panelists come not from the general student body or even faculty but from the world of student life or institutional diversity, areas likely to tilt toward a guilt-presuming ideology even amidst the consortium’s politically correct mindset.

Panel members in this case included two student life officials (one from Mt. Holyoke, the other from Hampshire) and Eric Hamako, whose Ph.D. in “Social Justice Education” produced a dissertation focused incorporating “stronger anti-racist frameworks into those educational efforts.” (Hamako, who then worked for Smith, could not be reached for comment; the other two administrators did not respond to a request for comment.)

This was not a panel, in short, that seemed likely to go out of its way to critically examine a rape accuser’s allegation, or to stand up for due process, particularly given the ideological climate at Amherst in the 2013-2014 academic year. Additionally, since all panelists were administrators (like Amherst’s former sexual assault coordinator), they lacked the protections of tenure if they made an unpopular decision.

Alcohol and Activism

The incident dated from the early morning hours of February 5, 2012, when the accused student (who filed the suit pseudonymously, as John Doe) was a sophomore. After a night of heavy drinking by Doe, he accompanied the accusing student (who I’ll call AS) back to her room, where she performed oral sex on him. (Doe had no recollection of the sexual encounter, a claim that even Amherst’s tribunal found “credible.”) When news of her having hooked up with her roommate’s boyfriend got around, a former friend recalled that AS (unsurprisingly) “lost her group of friends.”

AS’s new group of friends, much like Rolling Stone’s “Jackie” in the UVA case, came from campus victims’ rights circles. AS first mentioned the alleged assault in a column from an activist campus website to which she regularly contributes and which reflected the viewpoint of the most extreme campus victims’ rights advocates—though the thrust of the column focused on her friends (unsurprisingly) turning on her after the hookup.

AS also was friendly with a leading anti-due process activist on campus, Liya Rechtman, to whom Doe had reached out after publication of AS’s column, to ask if he could have in any way mistreated AS. Rechtman claimed that this conversation amounted to a confession, an interpretation even Amherst’s investigator said left her “confused.”

Twenty-one months after hooking up with her roommate’s boyfriend, AS filed a claim of sexual assault. She did not go to the police, and of course had not sought medical attention after the alleged attack. But she did claim to have one contemporaneous piece of evidence that the attack traumatized her. She told the college, she asked a friend to come over and spend the night with her after her encounter with Doe. No evidence exists that Amherst asked her to identify this friend, who did not testify in her hearing.

The Hearing

As it turned out, the case would be the first under Amherst’s new, guilt-presuming policies. While the accuser waited 21 months to file her charges, Doe received ten days before he met with the investigator; thirty-eight days after Doe was notified of the charges, the disciplinary board decided to expel him.

The two sides’ contrasting advisors reflected Amherst’s warped ideological climate on sexual assault issues. Though technically the advisor “is not an advocate for the student,” AS’s advisor clearly did sympathize with her. Rhonda Cobham-Sander, a tenured professor of Black Studies and English who specializes in post-colonial literary theory, was an influential figure on campus. Amherst’s first diversity czar, she delivered a victims’ rights-oriented address after the 2012 sexual assault controversy.

Doe’s advisor, on the other hand, was an Amherst administrator (who lacked tenure protections) named Torin Moore, whose academic training came not in the law or in anything related to civil liberties but instead in “social justice education.” Moore’s performance was so lackluster that Doe eventually would sue him. Neither Moore nor Cobham-Sander responded to requests for comment about whether they were aware of the full scope of evidence in the case.

The college’s hired investigator, Allyson Kurker, interviewed most of the witnesses in one day; Kurker did not respond to a request for comment about whether she was satisfied her inquiry uncovered sufficient evidence. An attack that AS initially described as wholly non-consensual came to be seen as consensual before changing during a “break” in the oral sex. “I can’t say it was clear to me” when the assault allegedly became non-consensual, Kurker admitted in the hearing. (You can read the hearing transcript here.)

Once the hearing began, AS repeatedly presented herself as too traumatized to articulate her thoughts verbally. (She had no such problem, according to Kurker’s report, when the investigator asked her questions.) Asked whether the two went to her room voluntarily to hook up, AS replied, “Yes. Well—although in would like to say that I did feel some—I did like well feel like well some—I did . . . I did like well feel like well some like . .  . well . . . some like . . . like . . . some like well pressure to do so.”

Panel member Hamako wondered about this “pressure,” which AS hadn’t previously mentioned, yielding this response: “So as we were making out in the common room, so some of the students there, so I think, so I think, so I think, [another student] included, were just like, well, chanting like well, things about me. Like, like, like, like, I mean, like, like, I mean, like, I mean like this, I mean like, I mean like, I mean like slut, and like that kind of thing. And they also like told us, get a room, so, yeah.” How that reaction (even if accurate) could be held against Doe was left unclear, since Hamako didn’t follow up.

I Didn’t, I Didn’t, I Didn’t

In perhaps the critical section of the hearing, when a panel member wanted to know what AS did after the alleged assault, she responded, “So after he like walked out, I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . . So I didn’t . . .” On cue, the panel then allowed AS to type a response—an option that AS repeatedly pursued during the hearing. In her written response, the accuser claimed that after Doe left her room, she felt “very alone and confused,” so texted a friend to come over and spend the night with her.

In fact, as Doe’s attorneys later would discover, AS had texted two people after the hookup—a friend, and a possible paramour. Even before hooking up with Doe, AS had texted the other male student, telling him, “I mean I happen to have my room to myself this weekend, if you wanted to come over and entertain me.” After she finished with Doe, AS resumed flirtatious texting with the male student, who came to her room and spent the night with her. He found her “friendly, flirtatious, and spirited,” and not “anxious, stressed, depressed, or otherwise in distress.” You can read these text messages here.

Just after Doe left her room, AS also had (as she told the disciplinary panel) texted a friend. But (contrary to what she told the disciplinary panel) she didn’t invite the friend over to her room. Instead, she informed the friend, “Ohmygod I jus did something so fuckig stupid.” Coarse language from her in subsequent texts implied an awareness that she had initiated sexual contact with the student she later accused of rape. AS was upset in these messages—but not from being raped.

Rather, she worried (not unreasonably) about the fallout of a sexual liaison with the boyfriend of her roommate, who “would literally never speak to me again” if she found out. AS continued texting her friend after the male student arrived; she described her attitude toward her guest: “Like, hot girl in a slutty dress. Make. Your. Move. YEAH.” At 5am, she sent another text to the friend indicating that some sort of sexual liaison had occurred with her male visitor. You can read these text messages here; the critical messages are on pp. 6-8.

AS mentioned none of these exchanges to the panel. But since Amherst, like all colleges, lacks subpoena power, it had no way to obtain text messages from the night of the alleged assault. In a campus climate predisposed to believe all but the most non-credible accusers (and even, sometimes, the wholly non-credible, as the UVA case demonstrated), the panel didn’t probe too much. After AS’s “so I didn’t” non-response, panel members gently turned to questions about how knowledge of her hookup with her roommate’s boyfriend affected her relationship with their common friends. “They all felt they had to side with [the roommate] and stop speaking to me,” AS complained.

The Outcome

Despite an accuser who offered borderline non-coherent responses that subtly expanded on her initial story, the panel ultimately accepted her credibility. It ruled that while Doe likely was “blacked out” during the oral sex, “[b]eing intoxicated or impaired by drugs or alcohol is never an excuse.” Since AS said she withdrew consent at some point during the sexual act, and since Doe couldn’t challenge that recollection, the panel was at least 50.01 percent inclined to believe the accuser’s tale.

(The panel members offered no explanation as to why or how they reached this decision.) The panel recommended immediate expulsion for Doe. For good measure, panel members also urged him (but not, it seems, AS) to obtain alcohol counseling. You can read the panel’s thread-bare decision here.

Amherst’s case depended entirely on AS’s credibility. During the spring 2014 semester, Doe hired an attorney—who managed to discover the text messages quoted above, messages that all but eviscerated AS’s credibility. But according to the complaint, even when confronted with this new—and transparently exculpatory—evidence, Amherst declined to reopen the case.

Once again: this is a case in which an accuser (to put it charitably) misrepresented written evidence vital to her credibility, and this same material, her words, showed—if anything—that she initiated sexual contact against a student who even Amherst’s panel described as “blacked out.” And yet, according to Amherst, AS is a sexual assault “survivor.”