Six Years Ago Today, Obama’s Education Department Made All Sex Unsafe on Campus
Today marks six years to the day since the Education Department's Office for Civil Rights released the infamous "Dear Colleague" letter obligating universities to investigate sexual assault and harassment.
The letter that launched the recent phase of fact-free investigatory proceedings and one-sided tribunals was just 19 pages long. It began with the assertion that sexual violence is a form of sexual harassment and is therefore prohibited by Title IX, which mandates gender equality at educational institutions that receive federal funding. In its letter, OCR also asserted that the sexual violence problem on college campuses was out of control, as evidenced by the 1-in-5 statistic.
"The statistics on sexual violence are both deeply troubling and a call to action for the nation," wrote then Assistant Secretary Russlyn Ali.
We know, of course, that the 1-in-5 statistic is misleading at best: while many women admit to experiencing nonconsensual contact at colleges, they don't see themselves as rape victims and very few are subjected to forced sex. But even if the sexual assault problem on campus was as severe as OCR claims, this would not justify any reduction of due process protections.
Unfortunately, the Dear Colleague letter established three important precedents that would harm the quest for fairness in college disciplinary proceedings.
First, it enshrined the preponderance-of-the-evidence standard. OCR's letter explicitly prohibits universities from using a higher standard of proof to determine responsibility in sexual misconduct disputes.
"Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX," wrote Ali.
If this had been the only change to misconduct hearings, it might not have been a complete disaster. Accused students who are afforded other fundamental rights—the right to an attorney, the right to confront the accuser, etc.—might still be said to have received due process, despite the lower burden of proof.
But OCR stopped short of recommending such protections.
"While OCR does not require schools to permit parties to have lawyers at any stage of the proceedings, if a school chooses to allow the parties to have their lawyers participate in the proceedings, it must do so equally for both parties," wrote Ali. "OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing."
OCR thus passed on the opportunity to guarantee that accused students would be competently represented and enjoy the absolute right to cross-examine their accusers. The letter speculated that "allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment." But the entire purpose of the hearing is to determine whether the victim is alleged or not—administrators can't know whether there is a hostile environment to perpetuate until they decide the case.
Lastly, the letter established the right of complainants to appeal an unfavorable outcome—a departure from the norms of Western justice, which traditionally hold that not-guilty verdicts are final.
In the six years since the letter was released, OCR has doubled and tripled and quadrupled down on its general sentiments, reaching settlement agreements with dozens of universities stipulating that due process will take a backseat at campus tribunals. The universities, for their part, have risen to the challenge of expelling more alleged rapists, and have initiated investigations into scores of male students—often athletes, often people of color—who engaged in drunken sex with female students. That these hook-ups were sometimes deemed consensual by all participants involved matters little to Title IX investigators who read OCR's guidance. It is the job of the university, not the alleged victim, to determine whether a sex crime has taken place.
An increasing number of legal experts admit that there's something deeply disturbing about the approach championed by OCR. The American College of Trial Lawyers recently expressed concerns about the preponderance of evidence standard. The Association of American University Professors, the Foundation for Individual Rights in Education, and the faculty of Harvard Law School are similarly concerned about Title IX enforcement. It's an issue that President Trump's Education Department should certainly revisit—and soon.
Six years is a quite a long time.