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Feds Fuel Anti-Sex Inquisition on Campus

A male student scored a major victory in his lawsuit against the University of Southern California, which kicked him off campus for a remarkable non-crime: failing to de-escalate an orgy. This was a crazy case, and the decision in his favor impugns not just USC, but the federal government’s entire strategy to combat rape by making colleges deal with it.

Over the past five years, the Obama administration’s Education Department has instructed universities to take sexual harassment and violence more seriously as part of their obligation to obey Title IX, a little-known gender equality law. While that all may sound like a good thing, the policies universities have been forced to put in place are shockingly illiberal, leading to routine violations of students’ due process rights, their right to free expression, and even their right to sleep together.

The student who filed the lawsuit against USC—“John Doe”—was suspended for allegedly sexually assaulting a female victim, Jane. He denies the assault took place. That’s hardly surprising. But what’s notable about this case is that Jane actually agreed. She consistently described their sex as consensual in interviews with USC investigators.

The university took a different view. Despite Jane’s testimony, administrators found John guilty of numerous sexual misconduct charges, including “non-consensual sexual touching.” He was suspended for 2½ years.

The court of appeals recently ruled in John’s favor: USC denied him a fair hearing, he “was not afforded an adequate opportunity to defend his actions,” and the school did not present sufficient evidence he was guilty, according to the judge. (PDF)

The sexual encounter in question took place at an off-campus fraternity party in January 2013. John and Jane met that evening and later engaged in two consensual sexual encounters. The second time, they were not alone: two other men, who were not university students, became involved. They became rougher with Jane than she wanted, and she eventually began to cry. The encounter ended immediately and everyone went their separate ways.

John was not accused of doing anything improper: In fact, Jane later texted him, saying she enjoyed her time with him.

Months later, after attending counselling sessions, she came to consider herself a victim of sexual assault. And she was right to think that—the other two men had not asked for explicit consent to touch her. But these men were not USC students, and it was USC that fielded her complaint.

John soon became the target, and was eventually found responsible for sexually assaulting Jane. He appealed this decision, in no small part because their sex was consensual. On appeal, the university decided it had erred in suspending him for assaulting Jane. Instead, it decided to suspend him for failing to prevent the other two men from assaulting Jane.

Consider the madness of such an outcome. A university told a female student that her consensual sexual encounter was rape, and then punished a male student for not putting an end to group sex quickly enough. That the incident took place off campus and involved non-students only adds to the silliness of USC’s involvement in the first place.

As outrageous as USC’s actions were, there is nothing novel about them. In fact, universities all over the country face lawsuits for denying basic due process rights to students caught up in sex disputes.

In addition to John’s, several other recent cases unfolded in the accused student’s favor. Federal judge Dennis Saylor is allowing a lawsuit against Brandeis University to proceed. The plaintiff, a male student, was found guilty of “serious sexual transgressions” against his former boyfriend, according to Brandeis administrators. But the details of the case cast serious doubt on whether such a description fits. The plaintiff’s crimes were, among other things, waking his boyfriend by kissing him and stealing glances at him in the shower. What’s more, Brandeis’s adjudication process was unfair to the accused. The judge described it as “essentially secret and inquisitorial.”

Another lawsuit, this one against James Madison University, survived a motion to dismiss. The plaintiff in this case was accused of sexual assault by his former girlfriend. He was initially cleared of the charges by the university. But the girlfriend appealed this finding—a finding of innocence—and during the second proceeding, the accused was barely able to review the supposedly new evidence against him. He was barred from attending the second hearing, and ultimately suspended—for 5½ years.

These cases represent just a photograph of the sexual assault adjudication landscape on American college campuses. There are plenty of examples of the opposite phenomenon: universities mistreating truthful accusers and letting male students get away with abusive behavior. Indeed, universities routinely botch these proceedings for both sides, denying fundamental due process rights to some students, while re-traumatizing others. College administrators lack legal training, of course, so it’s little surprise they are doing such a bad job. One can’t help but wonder why campus kangaroo courts handle rape at all, rather than leaving it to the police.

But universities are not in the business of policing students’ sex lives by choice. Under the federal government’s current understanding of Title IX, they are actually required to intervene.

What is this fearsome law? Despite its reputation as an all-encompassing prohibition against offensive speech and conduct, Title IX is actually just one sentence long: “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.”

The original purpose of the statute was to ensure that women’s clubs and activities received equal funding as to men’s clubs. No unequal treatment for male athletics, in other words.

But five years ago, the Education Department’s Office for Civil Rights (OCR)—the agency charged with ensuring Title IX compliance—began interpreting the statute much more broadly. OCR officials informed university officials that the law required vigorous policing of sexual harassment and sexual violence on campus. Harassment, according to OCR, was subjective, meaning that universities had to proactively investigate all accusations, no matter how unreasonable they seemed.

This has led to some serious breaches of academic freedom. Northwestern University Professor Laura Kipnis, for instance, was accused of violating Title IX after she wrote a scandalous column for The Chronicle Review. (The subject of the column, ironically, was Title IX’s chilling effect on speech.) A lengthy, expensive investigation ensued.

Kipnis isn’t alone. The “Title IX Inquisition,” as critics call it, has become so pervasive and so detrimental to the desired climate of free expression on college campuses that the American Association of University Professors recently released a report (PDF) accusing OCR of abusing the law.

Title IX has also been a disaster for due process. OCR has told colleges that they must evaluate claims on a preponderance of the evidence standard. In theory, this means that students should be found responsible if administrators are just 51 percent sure they are guilty. In practice, given that students are often denied legal counsel, the right to cross-examine witnesses, and records relating to the charges against them, it often falls to the accused to prove that he is innocent—an inversion of the principles of modern justice.

Justin Dillon, a partner with the law firm Kaiser, LeGrand & Dillon and an expert on campus legal issues, is deeply concerned about OCR’s guidance.

“Title IX is being used as an excuse to regulate everything from how college students talk about having sex to how they actually have sex,” wrote Dillon in an email to The Daily Beast. “Title IX is being turned into a speech code, which is something it was never intended to be.”

The situation has become so dire that Dillon’s firm, in partnership with the Foundation for Individual Rights in Education, is now seeking a client to sue OCR. Their hope is that a court might eventually rein in the rogue agency and correct its reckless interpretation of Title IX.

In the meantime, the lines separating protected speech from illegal harassment and messy sexual encounters from sexual assault have become a whole lot blurrier—to the great detriment of the quality of life for many college students.

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