The Office of Civil Rights of the U.S. Department of Education has launched an attack on the civil rights of college students. The attack comes in the guise of a letter to university presidents spelling out their responsibilities in dealing with sex discrimination, sexual harassment, and even violent sexual assault on campus.
At the same time that it issued the letter, the Education Department’s Office of Civil Rights announced an investigation into whether Yale University maintains a sexually-hostile atmosphere on campus. One of the triggering incidents seems to be the actions of some pledges of a fraternity on the campus, who gathered near a women’s dorm last fall and shouted out crude sexual taunts loudly but to no one in particular. The offending fraternity has been suspended from the campus for five years. Nevertheless, a group of female students has filed suit against Yale. Perhaps there are other, more serious incidents the details of which I am unaware.
Of broader concern is the "letter of guidance" from the Education Department’s Office of Civil Rights.
Some commentators have observed that the letter essentially requires colleges to maintain anti-harassment speech codes that will not pass constitutional muster. That’s plenty bad. Even worse is the section dealing with sexual assault cases that are not only violations of campus rules, but also serious felonies.
My first question is whether campuses should pursue their own investigations of felonies at all. They are nowhere near as well equipped as detectives, prosecutors and criminal defense attorneys carry out such investigation.
Yet the letter from the Education Department requires that they do so. This could lead to serious violations of the civil rights of students accused of serious crimes. Harvey Silverglate, a veteran defense lawyer, points this out in a statement written with a colleague from the Foundation for Individual Rights in Education (FIRE) , in the guise of the letter that the president of Yale should have sent to the Education Department.
In the letter, the two authors from FIRE note that: "On some campuses when certain allegations charge a crime as well as a violation of campus rules – rape is the most obvious example – a campus may, or even must, postpone its own tribunal while the criminal justice system proceeds. This accommodation by the college to the criminal justice system makes sense, because anything a student might say to the campus tribunal could be used to prejudice his criminal defense."
Nevertheless, the pair from FIRE note, the letter from the Education Department says that a college administration "promptly resume and complete its fact-finding even before possible criminal charges are resolved." What this means, they add, is that a student who is accused of a crime will be have to stay silent and thus unable to defend himself in any campus proceeding.
The Education Department’s Office of Civil Rights in these instances has put colleges in the position of being required to trample a student defendant’s civil rights. (The text of the FIRE statement, which contains a link to the Education Department letter, can be found here.)
This is not to condone sexual abuse. Student rapists should be brought before the criminal justice system and punished. And, as the FIRE authors note, the Education Department letter properly encourages college authorities to have crime victims file complaints with the police.
Still, even the police and prosecutors can bungle a rape charge. True victims can have their cases improperly dismissed. And defendants can be innocent of the charges.
A recent spectacular mess was made both by Duke University, whose faculty rushed to judgment when several members of is lacrosse team were falsely accused of rape, and criminal justice authorities. The university covered itself in ignominy, the local district attorney was ultimately disbarred for lying to the court and withholding evidence and the false rape accuser is now awaiting justice on a subsequent murder charge.
If the police and criminal justice system can occasionally mess up a case, how much more likely is it that academics will do so – especially if those who are accused in a campus hearing can’t defend themselves? And what has this to do with "civil rights"?
Jeffrey Hadden is deputy editor of The Detroit News and a columnist for the View.