Op-Ed: Don’t forget due process in student sexual assault, harassment cases
As an attorney representing students and faculty involved in Title IX misconduct investigations throughout the State of New Jersey, I respectfully disagree with the recent statements made by New Jersey Attorney General Gurbir Grewal and Secretary of Higher Education Zakiya Smith Ellis in their opposition to proposed rule changes over how schools should handle sexual assault and harassment complaints from students. The Attorney General should be especially concerned with the impact of his statements on undermining due process for those accused of violating school codes of conduct.
The Attorney General and Secretary criticize the proposed rule changes to Title IX misconduct regulations for making “school disciplinary proceedings more like criminal trials.” However, having represented over 200 students at college campuses in red and blue states across the country, I have seen, up close, the manner in which accused male students are inherently and routinely treated like criminals on college campuses -- whether they are guilty or not -- without the protections of the justice system or even the basic elements of due process. The proposed rule changes guaranteeing accused students the right to an actual hearing, together with increased evidentiary protections and greater transparency throughout the investigative and hearing process, would ensure students are innocent until proven guilty -- and not the other way around.
Let me be clear: Ensuring civil liberties on campus does not mean being permissive of acts of sexual violence. For too long higher ed institutions looked the other way. Campus sexual assault should never be tolerated. Nor, however, should the rights of those accused be trampled. No matter what our politics may be, we should all agree that Title IX policies need to ensure that all students -- both male and female — have the right to due process and a fair and impartial investigation.
Further, I am not talking about students who have been criminally charged. The focus here is on students facing campus disciplinary hearings.
Unfortunately, in the era of the Me Too movement, the mere allegation or suggestion of sexual impropriety is enough to get a student thrown out of college, due to the Obama Administration’s well-meaning but deeply-flawed Title IX policies. These “guilty until proven innocent” directives have caused schools to brand more male students rapists based on the excessively low “preponderance of the evidence” standard -- as opposed to the “clear and convincing evidence” standard traditionally used in college disciplinary hearings.
As a result of flawed Title IX directives and the clear disregard for the due process rights of male college students, hundreds of young men are facing life-changing consequences for allegations that have not been proven and crimes that have not been committed. Again, I’m not talking about those charged with a crime.
Make no mistake, these policies are ruining the lives of the wrongfully accused. At Drake University, a young man was wrongfully expelled in a case in which he had filed the same sexual misconduct charges against his accuser, but only the woman’s charges were investigated and only the male student prosecuted. A pre-med student at Penn State recently won an injunction in his lawsuit against the University to allow him to return to campus after he was wrongfully suspended for fabricated sexual misconduct charges. And at Clemson University, two students manipulated the campus’s sexual misconduct policies and used false rape allegations to prosecute, harass and defame a fellow student. I could go on and on and on.
While not perfect, the new proposed federal guidelines go a long way to ensure a full and objective investigative process and a fair, impartial hearing process in which the accused has a full opportunity to be heard and to question his or her accuser, the evidence and statements by witnesses, as well as an objective, independent appeals process.
Now more than ever, as universities are paying more attention – as they should – due process of law must be observed. No matter how difficult that may be. New Jersey’s chief law enforcement officer and his colleagues should recognize this important constitutional right.