Nation’s Oldest Law Daily: Colleges Poorly Equipped to Adjudicate Criminal Activity

The Legal Intelligencer, the nation’s oldest daily law journal, recently criticized the 2011 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights (OCR). In its recent editorial, “2011 Update to Title IX: The Pendulum Has Swung Too Far” (free registration required), the Intelligencer’s editorial board argues that while Title IX has been a strong force for good, the recent mandate from OCR puts that legacy in jeopardy.

OCR’s “Dear Colleague” letter stemmed from a growing perception that colleges were mishandling sexual assault cases in violation of Title IX. However, this “cure” has turned out to be bad for patients and still no answer to the disease. OCR determined that, in addition to fixing the clear failings that existed (such as colleges simply ignoring complaints), colleges and universities needed to significantly limit procedural protections for the accused. The Intelligencer addressed several of the due process rollbacks, writing:

For instance, the DOE demanded that colleges apply a "preponderance of the evidence" standard in determining whether a sexual assault complaint has merit, and prohibited both the "clear and convincing" and "beyond a reasonable doubt" thresholds. Further, the department dictated that schools should prohibit the accused from cross-examining the accuser, warning that doing so could create a hostile environment—effectively taking the position that everyone accused is guilty, and that having the temerity to question the accuser would compound the trauma.

Despite the importance of addressing sexual assault on campus, no fair-minded person can help but be outraged at OCR's denigration of due process and procedural fairness, which reduces the reliability of campus hearings and damages both the accused and victims. In citing the recent kerfuffle surrounding Professor Laura Kipnis at Northwestern University, the Intelligencer highlights just how extreme things have become:

Even open discussion of the topic has become unacceptable to the zealots driving this initiative. When a professor at Northwestern University recently had the temerity to express her opinion that these measures were misguided and counter-productive for an academic institution whose mission should be preparing its students to become fully functioning adults, she herself was subjected to Title IX investigations at the behest of anonymous accusers. Like any other person facing such an investigation she was not permitted to know what the charges were against her in advance of her questioning, and she was not permitted to have her own legal counsel participate. This may sound like the stuff of an Orwellian dystopia and one that could never happen in a society committed to freedom of speech. Yet here we are—read it for yourself at http://tinyurl.com/p856936.

Under threat from OCR, colleges are treating accused students unfairly—and in doing so, they are leaving themselves open to lawsuits by accused students. We agree with The Legal Intelligencer. OCR should remedy the situation and rescind the 2011 letter.