Thursday, April 25, 2013

If you are accused (not found guilty) of a sex offense on campus, your government has instructed your school to give your accuser options to avoid contact with you--and to 'minimize the burden on' her in deciding who should be removed from their dorm or classes

The goal of the Dept. of Education's April 4, 2011 "Dear Colleague" letter is to make it easier for colleges to expel and suspend young men charged with sexual misconduct. It is a laudable goal to punish rapists, but the decision makers behind this letter didn't bother to consider that it also made it easier to punish the innocent for offenses they didn't commit.  The most famous feature of the letter is its mandate that colleges lower the standard of proof in disciplinary proceedings about sexual misconduct to a mere "preponderance of the evidence." (In other words, a disciplinary hearing committee might have a significant doubt about the accused's student's guilt, but if it believes the evidence tilts ever so slightly in favor of the accuser, it must find the accused guilty.) Although it is couched in gender-neutral terms, the overriding purpose of the letter is to remedy sexual violence against women.

Among the letter's other mandates, at pages 15-16, is one that is rarely discussed: it requires schools to give accusers protection from their alleged sexual perpetrators even before an investigation is completed:
Title IX requires a school to take steps to protect the complainant as necessary, including taking interim steps before the final outcome of the investigation. The school should undertake these steps promptly once it has notice of a sexual harassment or violence allegation. The school should notify the complainant of his or her options to avoid contact with the alleged perpetrator and allow students to change academic or living situations as appropriate. For instance, the school may prohibit the alleged perpetrator from having any contact with the complainant pending the results of the school’s investigation. When taking steps to separate the complainant and alleged perpetrator, a school should minimize the burden on the complainant, and thus should not, as a matter of course, remove complainants from classes or housing while allowing alleged perpetrators to remain.
Read it again: the school give the complainant options to avoid contact with the accused and "should minimize the burden on the complainant . . . ."  Why didn't it say that the school "should minimize the burden on the complainant and the alleged perpetrator"? Not only does the "Dear Colleague" letter make it easier to punish young men accused of sex offenses, both the guilty and the innocent, this "interim steps" measure initiates the punishment process from the moment of the accusation. But it's even worse than that: a comprehensive law review article that recently exposed the injustices of the "Dear Colleague" letter translated the "interim steps" provision as follows: "In other words, alleged perpetrators should automatically suffer life-upending punishments like expulsion from their residences upon accusation because they are likely guilty." The law review author explains that this mandate is just part of the letter's "formalization of a presumption of guilt in campus adjudications." S. Henrick, A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses, 40 N. Ky. L. Rev. 49 (2013). (The article can be read here.)

At Saint Joseph's University in Philadelphia, when interim steps are taken against someone before a complaint is investigated -- such as a student being removed from his dorm -- the University's president and general counsel did not want the school to be required even to meet with the affected student to discuss the interim steps. According to the school's student newspaper, the university's president and general counsel wanted the policy to be that a meeting with the affected party could take place "as needed."

The school's faculty recently nixed the "as needed" weasel-words as "too lax" from a due process perspective. Accordingly, the school's new policy will require the person making the decision about "interim steps" to have a meeting with the accused student. “Taking someone out of the classroom but not giving them a logical reason is unjust,” said Prof. Anne E. Green.

That's a small but positive step. We've seen other examples of faculty members across America pushing back at the Dear Colleague letter, but short of a lawsuit (no one has filed one yet that we are aware of), they can't overcome its mandates, or the assumption of male guilt that underlies its policies.