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October 14, 2016
In 2011, the U.S. Department of Education, under the instruction of the Obama Administration, sent a letter to colleges and universities across the country clarifying (and in the opinion of many, expanding) the schools’ obligations under Title IX to investigate allegations of sexual harassment and assault on campus. Many incidents of sexual assault on campus are – rightly or wrongly – adjudicated by colleges and universities rather than courts of law. The changes introduced in the “Dear Colleague” letter are making waves in communities across the country.
The majority of sexual assaults are not reported. College students are particularly unlikely to report their rapes to law enforcement. These statistics are a part of the reason why the Obama Administration felt it needed to address assault under Title IX at the university level. Despite the best of intentions, schools are largely unequipped to handle the gravity of properly adjudicating a sexual assault case. Colleges are not courts. Title IX and the “Dear Colleague” letter do not provide attorneys for either student (merely requiring that if the school allows attorneys, both students shall have equal access). And without the training and infrastructure of a court system, colleges are often failing both the victims and the accused.
College disciplinary proceedings are not held to the same standards – “beyond a reasonable doubt” – as a criminal proceeding. While the accused cannot be jailed, they can be expelled. An expulsion can have long-lasting repercussions on an accused’s ability to matriculate elsewhere. When the standard of proof is lower than criminal court, it’s a hard pill to swallow for many as permanent damage can be done to an accused’s future.
Georgia lawmaker Earl Ehrhart finds it particularly distasteful. He has sued the U.S. Department of Education over the regulations that came from the “Dear Colleague” letter. He argues that the standard of proof for colleges and universities on sexual assault cases should be much higher, and that the federal government should not be tying grant funds to the standards the “Dear Colleague” letter sets out. He states that the standards set forth create a “guilty until proven innocent” system that is unfair to young men. He has pushed for Georgia universities amend their standards to protect accused students better in the disciplinary process.
In general, sexual assault cases are extremely difficult to prove because the nature of the crime often provides for only two witnesses: the victim and the perpetrator. Many cases come down to a question of consent, not whether the two parties had sex (so physical evidence of sex doesn’t prove either side). This difficulty leaves both courts of law and university disciplinary systems to have inconsistent results.
Is Earl Ehrhart right to say that the current system is unfair to men and leading to “severe, unwarranted and permanent damages to male students”? Are men the true victims in the university system? Under significant pressure from the federal guidance and the court of public opinion, public institutions can be overzealous in their prosecution of sexual assault allegations. It is important that students know what the rules are. In some institutions, the rules are so subjective that virtually any act associated with sexual interest or attraction can be misinterpreted as “sexual harassment.” To protect students (both vitims and the accused) school policies must be interpreted consitent with Supreme Court precedent defining sexual harassment. If they do not, then students can lose tens or hundreds of thousands of dollars in tuition and schools can be sued for violating the contractual and constutional rights of accused students.
If you find yourself accused of violating a sexual harassment policy, you should seek legal advice to navigate the process that could change your life.