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Op-Ed: Time to Reform the Kangaroo Courts on Campus

The University of Minnesota football team’s dramatic walkout in protest of what they saw as unfair treatment of 10 fellow players in a campus sexual-assault investigation came to an end on Dec. 17. But it made national headlines for imperiling the team’s trip to the Dec. 27 Holiday Bowl and for the players’ demands that their accused teammates receive a “fair hearing” with a “diverse review panel.”

The solidarity shown by the University of Minnesota players and the attention the team’s protest drew could prove a powerful blow to the Education Department’s efforts to regulate sex and speech on campus through the abuse of Title IX, the federal law against sex discrimination in education.

In September, following allegations that Minnesota football players had sexually assaulted another student, Minneapolis law enforcement investigated and declined to charge any player with a crime. Yet the university’s Title IX investigation into the same incident—which lacked full access to some video evidence used by police—resulted in 10 players’ suspensions from the team, angering members and inspiring the walkout.

Such wildly divergent outcomes between campus and police investigations erode confidence in both systems. Yet they have become more common than ever since the Education Department’s Office for Civil Rights (OCR) began to do end-runs around the law five years ago.

In April 2011, the OCR surprised colleges by announcing in a “Dear Colleague” letter that, henceforth, campus tribunals involving sexual misconduct had to use a standard of proof known as “the preponderance of the evidence,” which requires that they be only 50.01% certain when determining whether a student committed an offense. Given that campus courts routinely deny students counsel, the right to face their accusers, access to evidence, and even the presumption of innocence, this mandate banned what was often a student’s only meaningful due-process protection: that fact-finders be more than just barely persuaded of their guilt.

Worse, in May 2013, in a settlement with the University of Montana that it labeled a blueprint for other colleges and universities, the OCR, joined by the Justice Department, determined that all “unwelcome conduct of a sexual nature,” including speech, should be deemed sexual harassment. Even a single, unwelcome, overheard dirty joke is “harassment” under this standard.

The results have been profound. My organization, the Foundation for Individual Rights in Education, which has sponsored lawsuits challenging the OCR’s decisions, has identified more than 130 lawsuits filed by students who claim they were wrongly punished for sexual misconduct since the Dear Colleague letter was issued. Victims and accusers also routinely complain of bad investigations by college administrators who are poorly equipped to handle felony crimes.

The OCR’s debased definition of harassment, meanwhile, has led to absurdities such as a feminist professor being investigated for criticizing Northwestern University’s Title IX efforts in a newspaper column. Confidence in the system is low for very good reason.

The change of administrations in Washington offers a valuable opportunity to erase these failed policies. First and foremost, the OCR should officially renounce both its “preponderance of evidence” mandate and its wildly overbroad definition of sexual harassment. Because the agency chose to make these changes through fiat rather than the notice and comment procedures required by the Administrative Procedure Act, such a reversal is fairly simple.

The OCR should also change its definition of peer sexual harassment to exactly track the Supreme Court’s language in Davis v. Monroe County Board of Education (1999). Davis defines harassment as behavior that is targeted, discriminatory, and “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” This standard fulfills the requirements of the First Amendment while giving schools the ability to combat real harassment. While the OCR has claimed that its standard tracks Davis, few schools treat it that way—and neither does the OCR.

If further rules are necessary, the OCR must work with Congress or go through the official regulatory process as required by law. Since 2011, defenders of the embarrassingly minimal standards of campus courts have argued that they are sufficient because schools find a student “responsible” for rape rather than “guilty” of it. Yet the ultimate determination being made—did the assault happen or not?—is exactly the same.

Campus courts might not be real courts, but sexual assault is equally serious whether it happens on campus or off and deserves to be treated as such. New leadership at the Education Department dedicated to equal justice for every student could do much to help schools like the University of Minnesota fight sex crimes on campus while improving the fairness and accuracy of campus discipline and respecting the Constitution.

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