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Op-Ed: Colleges mistreat men accused of sex assault

Now that another college year has begun, students beware. It seems nearly every week the U.S. Education Department announces another university is under investigation for at least one incident of sexual assault on campus. An alarming feature of present-day life on campuses of colleges and universities in this country is that students — almost always men — find themselves in the midst of a veritable minefield where due process protection is almost always conveniently overlooked.

And even when DOE isn’t making demands of colleges, school administrators often ignore due process, as is claimed in a lawsuit I filed against Columbia University on behalf of a male student facing disciplinary action. The U.S. Circuit Court of Appeals recently allowed the accused student’s lawsuit against Columbia to move forward, stating that there was sufficient plausibility of a Title IX violation in the university’s mishandling of the investigation.

Certainly, victims of sexual assault have too often been ignored or worse, so the Obama administration was right to insist on more serious attention being paid to the issue. But it has overreached with disastrous results for those accused, who have little legal protection on campus.

Plainly put, higher education institutions are using their internal disciplinary procedures to try students for claims of sexual assault and to mete out penalties, including expulsion, suspension and a permanent scar on their academic record. The reason is how the DOE has interpreted Title IX of the Education Amendments of 1972, which provides in part: "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."

In 2011, the Department of Education issued what has become known as the "Dear Colleague" letter to every college and university receiving federal funding, which is to say virtually all colleges and universities in the United States, addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. The 19-page "Dear Colleague" letter contains guidance and directives on how schools are to address sexual assault and misconduct to comply with the DOE's view of Title IX.

Among other things, the "Dear Colleague" letter dictated that schools use a "preponderance of the evidence" standard, discouraged schools from allowing the parties to question each other, asserted that unlawful sexual harassment may occur that is not a violation of the criminal law, and mandated that schools, if appeals are provided, must allow both parties to appeal. This is an appalling approach regarding due process and creates a new class of victim while attempting to protect another class of victim.

Since the issuance of the "Dear Colleague" letter, there has been a marked increase in the number of colleges and universities under investigation by the Department of Education's Office of Civil Rights for Title IX violations, and an increasing number of students have been the subject of sexual misconduct complaints adjudicated in school disciplinary proceedings. There has also been an explosion of litigation challenging the results of these school disciplinary proceedings that too often are unfair, lack a regard for due process, and result in life-altering consequences.

Fortunately, the rule of law may soon replace the arbitrary process that has, in fact, been encouraged by the Department of Education. The U.S. District Court for the District of Rhode Island ruled to allow a former student’s lawsuit to proceed against Brown University, charging Brown violated his due process rights and discriminated against him based on his gender in a wrongful sexual misconduct investigation.

To correct the past transgressions of higher education institutions as they overlooked too many sexual assaults on their campuses does not mean creating a new class of victim. Title IX was meant to be a tool for fairness, not a weapon against rule of law. Sexual assault on campus must not be ignored, but neither should due process.

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