Title IX and due process

In 2011, the U.S. Department of Education Office of Civil Rights (OCR) sent a “Dear Colleague” letter to universities announcing a new interpretation of Title IX, originally intended to fight discrimination against female college athletes. The OCR declared campus sexual assaults a type of discrimination. Fearful of losing federal funding, universities scrambled to establish tribunals to hear campus sexual assault cases.

The OCR required tribunals hear cases under the “preponderance of the evidence” standard, rather than “beyond reasonable doubt” or even “clear and convincing” standards. Moreover, accused students could not have an attorney, or even cross examine their accusers, because that might cause trauma to the victim.

Legal experts generally agree that the reasonable doubt standard requires at least a 90 percent certainty of guilt to convict. The preponderance standard reduces that threshold to 50 percent. Probability theory predicts that at least one in four innocent people would be found guilty under the preponderance threshold, compared to fewer than one in 20 under the reasonable doubt standard.

In a short time, the new policy produced bizarre and shocking results. USC football player Matt Boermeester was found guilty and expelled because a nosy neighbor reported his roughhousing with his athletic girlfriend as an assault. Her testimony that they were playing was dismissed as a sign of battered woman syndrome, and a court has stayed his expulsion until a trial—but that will not be until sometime next year.

University of Texas at Arlington student Thomas Klocke committed suicide after he was found guilty of sexual harassment, accused by a gay student whose advances he rejected and who claimed Klocke told him to commit suicide. Colorado State University-Pueblo student of color Grant Neal had a third party accuse him of assaulting a woman who said there was no assault, but he was expelled anyway. His lawsuit against the campus was settled out of court after a judge found the campus process shot through with “bias and inaccuracy.” So many black students were accused under the new policy many observers question whether the policy itself is discriminatory.

Even educators were swept up in the new panic. Northwestern University Prof. Laura Kipnis had Title IX complaints filed over her published article in which she argued that campus attitudes toward sex and rape were infantilizing, anti-feminist, and creating a culture of fear. When she published a book on her case, another investigation was opened. Professor Kipnis is being investigated for writing about being investigated.

In our Victorian legal culture, all sexual acts are potential violations worthy of investigation and punishment. Campus sexual assault panic is just one manifestation of the state war on sex. Sex-trafficking hysteria, attacks on Backpage.com for carrying sex worker ads, sex registry laws that unreasonably punish sex offenders, laws conflating teen sexting with distribution of child pornography all manifest the hypocritically prudish mentality infesting the ruling class.

On Sept. 22, new Secretary of Education Betsy de Voss withdrew the Obama-era Dear Colleague letter. Her revised letter correctly notes that the new policy was implemented without public notice and opportunity for comment. More importantly, her letter spoke of the deprivation of due process rights caused by the new policy, both to the accused, who is denied due process, and the victim, who often does not see resolution.

Opposition is already forming to DeVoss’s decision. Former Obama staffers have set up a legal defense fund for a court fight. One of the members of the group’s advisory board is U.S. Commission on Civil Rights chair Catherine Lhamon, former head of the OCR that sent the now-revoked Dear Colleague letter in 2011.