Higher education institutions are using their own internal disciplinary procedures to try students for claims of sexual assault.
By Andrew Miltenberg
Rider University is under federal investigation for at least one incident of sexual violence on campus, the U.S. Department of Education announced last week.
Certainly, any accusation of campus sexual misconduct and violence is a very serious matter and should be properly investigated.
However, an alarming feature of present day campus life is that students -- almost always men -- find themselves in the midst of a veritable minefield where due process protection is almost always conveniently overlooked. Male students accused of sexual assault are presumed guilty until proven innocent.
Certainly victims of sexual assault have too often been ignored, or worse, and the Obama Administration was right to insist on more serious attention be 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 own internal disciplinary procedures to try students for claims of sexual assault and to mete out life-altering penalties, including expulsion, suspension and a permanent scar on their academic record.
The reason is the interpretation that the U.S. Department of Education has given Title IX of the Education Amendments of 1972 which provides in pertinent 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, 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 Department's view of Title IX.
Among other things, the "Dear Colleague" letter dictated that schools use a "preponderance of the evidence" standard rather than the "clear and convincing standard."
The letter also discouraged schools from allowing the parties to question each other and mandated that schools, if they have a process for appeals, 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 universities under investigation by the Department'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 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 been encouraged by the Department of Education. Last month, the United States 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.
From the outset, Brown University mishandled the investigation, ignored former student's due process rights, and engaged in gender bias against the accused.
This case illustrates the critically flawed process by which sexual misconduct investigations are handled at many colleges and universities, where there is an inherent bias against the accused male students. The outcome of this case could set an important precedent in the manner in which colleges and universities conduct sexual misconduct investigations in regards to Title IX.
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.
Rider University is now under the microscope. Sexual assault accusations must not be ignored, but neither should due process.
Andrew Miltenberg, a Wyckoff resident, is an attorney who specializes in campus assault due process.