Tuesday, June 16, 2015

Repeal the "Dear Colleague" letter, says respected legal journal

The Legal Intelligencer, the oldest daily law journal in America, says the "Dear Colleague" letter needs to be repealed:

2011 Update to Title IX: The Pendulum Has Swung Too Far
The federal law that requires gender equality in higher education, commonly referred to as Title IX, has brought about many laudable results since it was first passed in 1972. But at the behest of the U.S. Department of Education in 2011, the law that was passed to ensure that female students get equal opportunity was refashioned to require that schools investigate and punish sexual assaults on campus under DOE-approved procedures.

In the name of the wholly laudable goal of combating sexual assaults, the DOE placed schools in the precarious position of adjudicating allegedly criminal acts in their discipline systems, with the threat of potentially ruinous sanctions, should the schools' efforts fall short. Recognizing that at least some accusers have historically been mistreated, the department insisted on changes in how the system was to run, but those changes have gone too far and now undercut fundamental rights of those accused of wrongdoing. 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.

We can all agree that people who commit crimes should be brought to justice. At the same time, most of us share a profound commitment to affording those accused of a crime with certain rights—to know the accusation, to confront the accuser, to cross-examine witnesses and to due process. We know that each of these rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate. If a mere accusation is sufficient to mete out punishment, we know how this story ends.

The damage is not confined to those who are falsely accused, nor to those whose valid complaints have been called into question by others crying "wolf." 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.

There are too many wrongs here to count. Higher education institutions are not designed, financed or suited to simultaneously play prosecutor, judge and jury. Faculty, administration and staff cannot magically be transformed into district attorneys and public defenders, even to satisfy the DOE's efforts to combat sex discrimination, and it is bad policy to force the square pegs of academia into the round holes of criminal prosecution. Moreover, those who face the prospect of being labeled as responsible for a sexual assault, expelled and having their future compromised by all that entails are just as vulnerable as those who are being prosecuted in the criminal justice system. We have constitutionally mandated requirements for due process in our criminal justice system, and if schools are to be tasked by the DOE with investigating and adjudicating quasi-criminal accusations, appropriate safeguards must be guaranteed to the accused.

We urge the Department of Education to repeal its 2011 mandate as both unconstitutional and unfair, and we urge that Congress amend Title IX accordingly.