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Op-Ed: Punishment Without Evidence on Campus

This academic year will be remembered for its psychological crack-ups over Halloween costumes (Yale), faculty intimidation of student journalists covering protesters (the University of Missouri) and purges of single-sex social clubs (Harvard). But the dishonor roll isn’t complete without documenting how the Obama Administration is further eroding due process on campus.

The Education and Justice Departments have already gone far to subvert the norm that students accused of sexual assault retain individual rights. Now they are targeting the few rights that are left. Under new standards promulgated this spring, students can be punished before any disciplinary hearing has been held, and sometimes after anonymous allegations.

Starting with a 2011 “Dear Colleague” letter, the Education Department has reinterpreted the Title IX law that prohibits sex discrimination at educational institutions, creating legal obligations that do not exist in federal statutes. Schools can now lose taxpayer funds if they use a “clear and convincing” evidentiary standard for adjudicating assaults instead of the less rigorous “preponderance of the evidence.”

A new round of federal letters appeared starting in April. The one that expanded the definition of sexual harassment the most—and how schools must respond—was the finding of a Justice Department investigation into the University of New Mexico’s grievance protocol.

Justice said UNM violated Title IX in part because of a “failure to provide effective interim safety measures.” Interim measures are imposed on an accused student before any official ruling on guilt. They can include provisional suspensions for the accused; no-contact instructions akin to a restraining order; restrictions on when students can use libraries, dining halls and athletic facilities; evictions from dorms; and bans on extracurricular activities.

Some of this may be appropriate if someone poses an immediate threat to public safety, but UNM was sanctioned for being insufficiently punitive. “For example,” Justice writes, “a respondent was suspended during the pendency of a sexual assault investigation but applied for graduate school at UNM and was granted admission prior to the time OEO completed the investigation.” OEO is UNM’s Title IX enforcement office.

In another case, UNM suspended a student during an investigation as an interim measure. He was exonerated and returned to UNM. But Justice rebukes the school because when “the complainant became aware of the respondent’s return to campus through third parties, she felt ‘powerless and destroyed.’”

In other words, students should have their academic careers or economic futures derailed before any adult has examined the evidence, assessed the credibility of the witnesses, or provided a fair and impartial inquiry. False accusations are not unknown, especially among immature or unstable young people.

For the first time, the Justice Department has also explicitly introduced a “responsibility to investigate complaints of sexual harassment to determine whether a hostile environment exists that requires further action,” even if accusers remain anonymous.

This matters because a hostile environment can exist independently of the details of a specific case, and thus can be established by complaints that haven’t been corroborated and don’t qualify as traditional proof. Justice invokes “perceptions” as much as facts.

“Indeed, some complainants reported that the OEO process was more upsetting and traumatizing than the initial sexual harassment that was the subject of their complaint,” Justice observes. The department faults UNM for failing to “issue a no-contact order because the complainant had requested that her name not be revealed.”

The White House has encouraged the incognito reporting. Vice President Joe Biden even sponsored a funding competition for third-party software developers to create smartphone apps that make sending anonymous Title IX allegations—or gossip overheard at the gym, or whatever—as easy as sending a Snapchat.

One problem is that Justice and Education are supposedly offering mere “guidance,” not specific regulations, so schools will have to infer what they must do from letters like the one to the University of New Mexico. But they’ll get the message. Some 228 colleges and universities are under investigation for Title IX violations, and complaints to the Education Department’s Title IX office have increased 502% over four years.

Either the Vikings are invading U.S. campuses or Title IX has become a political weapon. Maybe the liberal professors and administrators cheering on this campaign can’t be expected to notice they’re supporting disciplinary standards they’d never accept in criminal justice or policing.

But maybe they’ll eventually move to defend their own interests, if not their supposed ideals. One of U. of New Mexico’s Title IX errors, according to the Justice Department, was not stripping a professor accused of sexual harassment of his teaching duties, as an “interim measure.”

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