End the Title IX Madness

©2017 Kenneth N. Margolin

College officials have no business determining the truth or falsehood of a sexual assault allegation. That is a job for the courts and the courts alone. College officials need some ability to protect alleged victims of sexual assault, even if the truth of the accusations is unknown, but they should not determine guilt or innocence. Yet, under the federal Department of Education's April 4, 2011, "Dear Colleague" letter interpreting Title IX, colleges are charged with doing just that. The letter was heavily slanted in favor of accusers, paying little heed to the rights of the accused. Colleges across the country have enthusiastically adopted the anti-accused, anti-male tenor of the "Dear Colleague" letter.

Rape is one of the most serious offenses with which an individual can be charged. In many cases of alleged rape, there is no question that sexual intercourse occurred, and the question becomes whether or not the sex was consensual. In many college rape cases, when both students drank heavily before sex, the question becomes whether the female student was "incapacitated" and thus unable to make a conscious choice, and the male student should have known she was incapacitated. If there were no witnesses to the sexual activity, making the right decision on the guilt or innocence of the accused, may come down to whose story to believe, a situation often described as "he said, she said." In the criminal system, a defendant is afforded significant procedural protections. Among the most fundamental are the right to be informed precisely of the charges, full discovery of the evidence in the possession of the prosecution, including "exculpatory evidence" – evidence that tends to exonerate the defendant – the right to an attorney who will present the defendant's case in court, and of crucial importance, the right to confront witnesses against the defendant, including the complainant, through cross-examination.

When a college student, almost always male, is accused of rape by a fellow student, almost always female, he is subjected to a process that mimics the justice systems of many third world tyrannies. There are two basic models that colleges follow, the hearing model and the investigative model. The hearing provided an accused college student looks nothing like the hearings employed in most other contexts when potentially life-altering interests are at stake. Public colleges are subject to the United States constitution, meaning that the Due Process clause applies. Yet, the typical proceedings are about as far from "Due Process" as one could imagine.

Consider the "hearing" model. In most colleges, the accused student will receive a vaguely worded email that may tell him little more than that he has been accused of sexual misconduct. Sometimes the email may provide some extra detail, but almost never at this stage will the student be provided with the complaining student's statement that initiated the case, and that contains the full details of the allegations. In that email, the student will be requested – often required – to meet with a college official, usually a Dean, to tell his story. To require an accused person, let alone a young, frightened college student, to tell his version of events and to answer questions when he does not know for certain the claims against him, conjures visions of the Star Chamber, the

abusive ancient British system in which persons accused of various misdeeds were judged in secretive, arbitrary and hostile proceedings. Despite the fact that sexual assault is a crime, attendance of an attorney at these preliminary meetings are banned at some colleges. At others, the attorney must sit silently and cannot participate.

After the Dean's meeting, a hearing will be convened. At many colleges, the hearing panel consists of a mix of faculty and students. In a jury trial in court, there is a judge, who is trained in the law, and who will instruct the jury as to the law they must follow when determining guilt or innocence. No such instructions are given to the hearing panel members, who may be only dimly aware of the rules that dictate their deliberations. The accused student will be denied the right to ask questions directly of his accuser and witnesses who may testify against him. If he has a lawyer, the attorney will usually be forbidden to speak. Thus, we have the spectacle of an amateur panel with no judge to guide them, determining whether a serious crime has been committed, yet refusing to hear the commentary of an attorney who is professionally trained to evaluate the implications of often conflicting evidence.

Perhaps worst of all, college disciplinary panels, acting under an Obama administration Department of Education mandate, employ the "preponderance of the evidence" standard in sexual assault cases. If the panel believes that the complainant's case is a smidgen more credible than the respondent's, they find against the respondent. The practical impact of the preponderance standard on America's generally left-leaning, often anti-male biased campuses, is that the standard invites the disciplinary panel to find against the accused male. By so doing, the college avoids claims that they are insensitive to rape, and avoid the risk of a lawsuit by the aggrieved accuser.

The "investigative model" is even more pernicious than the rights-abbreviated hearing model. With the investigative model, the college usually assigns a single investigator who unilaterally decides which witnesses to question and what questions they will ask. The complainant and accused are free to recommend witnesses, but the choice ultimately rests with the investigator. A draft report will usually be sent to both students, with each given the chance to comment. Each student may also be told what the other told the investigator, with a chance to comment, but they have no right to confront the other student directly. The investigator then issues a final report in which findings of fact are made, and a determination of whether the accused student was "responsible" for the alleged sexual assault. Once again, a male student accused of an act that is a felony is judged with no right to an attorney to present his case, no right to cross-examine or confront his accuser, with the determination of his responsibility based upon the preponderance of the evidence standard, and with the investigative model, no hearing.

When a claim of sexual assault is made, the colleges role should be restricted to providing reasonable protections for the alleged victim, including if necessary, and only after an emergency hearing, ordering the accused student to stay away from his accuser, and in some case, requiring the accused to change housing or even class schedules. No student should be expelled or have his transcript permanently tainted unless convicted of sexual assault in the criminal courts. Given the current frenzy over rape allegations on college campuses, the change recommended here is unlikely to occur in any foreseeable future. If colleges persist in trying to determine if a sexual assault occurred, they should at least provide the accused with the right to counsel to present his case, the ability to cross-examine witnesses, including the accuser, and "clear and convincing evidence" rather than merely "preponderance of the evidence" as the evidentiary standard required for a finding of "responsible." The notion that procedural protections for college students accused of sexual assault, are expendable, must end.