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College Administrators Need Refresher Course in Due Process Under the Law by Andrew T. Miltenberg


There is more than college football on the minds of university administrators and students as the fall semester begins. Many large and small universities are finding themselves acting as judge and jury to consider allegations of sexual misconduct. The rush to judgment, in which there is a presumption of guilt upon the accused, ignores the judicial tradition of due process and innocent until proven guilty, is due in part to a bill before the U.S. Congress and a White House task force charged with investigating ways to prevent campus sexual assaults. These actions are focusing national attention on an issue academia would prefer to keep within the confines of their ivy covered walls.

This flurry of activity raises doubts about a current system which overwhelmingly finds the accused must be punished, expelled, their future in doubt for being branded a sexual predator. These disciplinary panels are unqualified to judge whether sexual activity between two adults was consensual or rape. No longer willing to sit back, denied a chance to refute the charges, a growing number of male students and their parents are turning to lawyers to overturn these punitive measures, and when called for, file legal actions against the universities.

For those leading the fight to have colleges act swiftly and vigorously to take action against the accused, they have resurrected Title IX, federal legislation which makes illegal any behavior deemed as gender discrimination, claiming the alleged "victim" has not been given their civil rights protection under the provisions of the law. Many Title IX administrators object to this effort, questioning whether school disciplinary panels are interpreting the legislation differently than its original intent.

Joining the fray, and stirring the proverbial tempest in a teapot, is Senator Claire McCaskill (D-Missouri) who recently introduced the Campus Accountability and Safety Act (CASA), which even victim of assaults organizations view as one-sided and denying due process to the accused. CASA would limit the right of law enforcement officials to investigate sexual assault allegations, unless and until the accuser agrees. This means campus disciplinary panels can control the destiny of the accused, even when they lack the qualifications to make a fair judgment. At one college, The Director of Food Services was drafted from the campus cafeteria to determine whether an occasion of drunken sex between two students rose to the level of rape.

As the college year begins, expect the volume to be turned up on sexual assault on campus. A small group of attorneys are finding themselves speaking to expelled students ready to fight for their rights to due process, and proclaiming their innocence . For a precedent which grabbed the headlines a few years back, refer to the Duke University lacrosse case where several members were accused of rape, expelled from school, their lives and careers ruined. By the time the accuser recanted her story, and the charges dismissed by local law enforcement, the damage had been done. Not even being invited to return to Duke (which they all declined) and significant financial settlements are enough to fully recover their reputations.

Rape is a horrific act and compassion for the victims is always called for when a crime is committed. It has been said that Justice is a process, not a result. In the current climate in which over 70 colleges and universities are under federal investigation, the concept of due process cannot become a victim to a frenzied rush to judgment.

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Andrew T. Miltenberg is Litigator and Managing Partner, Nesenoff & Miltenberg, LLP

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