College campuses have it rough these days. It's easy to blame them for the current state of lawsuits stemming from sexual assault complaints, but a lot of the blame should be placed on the federal government.
It was the Department of Education's Office for Civil Rights that published the "Dear Colleague" letter that has been used by colleges to institute pseudo-court systems designed to make it easy to expel accused students. For their part, the colleges aren't exactly happy about this new world.
"A university is not a court of law and the same rules that apply in criminal cases do not apply to student conduct proceedings," said a spokesman for James Madison University. "No matter how the proceedings are handled, at least one of the parties will likely be unhappy with the results and may choose to go to federal court."
The spokesman was specifically referring to a lawsuit by an accused and suspended student who claims, as many accused students do, that his due process rights were violated. The student, named as John Doe in his lawsuit, claimed the university meted out its unnecessarily harsh punishment — he has been suspended from the university through the year 2020 — after the university received a backlash over a previous sexual assault allegation.
The previous case involved a student alleging a gang rape over spring break. In that case, the school took 372 days to expel the men, and even then the expulsion kicked in only after they graduated.
John Doe JMU is not alone in alleging that a university reacted harshly to reports that they were not doing enough to help sexual assault victims. Another John Doe lawsuit, this time from Columbia University, alleged that he was set for expulsion as the university's campus erupted with sexual assault protests and backlash. John Doe Columbia just had his lawsuit dismissed by a federal judge.
The universities are being forced into this untenable position. Nancy Gertner, a feminist and former federal judge, summed up the current culture surrounding campus sexual assault thusly: "If you find for the man, you're bound to be criticized. If you find for the woman, you are not."
Josh Engel, an attorney in Ohio who has been taking on cases from accused students,described this sentiment last year.
"All the incentives for the school are lined up at the moment to encourage them to throw kids out. Schools do not get any credit from the Department of Education because they provide adequate or more-than-adequate due process," Engel told the Washington Examiner. "All the Department seems to be concerned about these days is results, which is, 'how many kids have you disciplined?'"
And as far as the Department of Education goes, what is considered acceptable behavior and what constitutes a university response are constantly changing.
"Part of what is hard, honestly, as an institution, is the playing field changes with every OCR resolution," Lisa Brown, Georgetown University's vice president and general counsel, said at a panel discussion in March (the same one attended by Gertner).
So on the one hand the universities are being pushed by activists and the media to take a tougher stance on sexual assault, and on the other hand being sued by accused students who were expelled without evidence or due process. All the while these schools are being forced to adhere to the whims of a federal government threatening to remove their funding for noncompliance.
The universities can't win.
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