The Heritage Foundation

Backgrounder #3113 on Legal Issues

August 2, 2016

August 2, 2016 | Backgrounder on Legal Issues

How American College Campuses Have Become Anti–Due Process

Some politicians and media outlets seem to believe that college and university campuses are beset by a culture that is indifferent to rape and that the procedures for investigating and adjudicating claims of sexual assault are so one-sided as to constitute gender discrimination against female accusers. In reality, schools for decades have denied meaningful due process to students accused of sexual assault, and mandates from the U.S. Department of Education have only made the problem worse. Far from condoning criminal activity, American college administrations are so concerned with ideology, federal funding, and public perceptions that they punish innocent students. Examples from four elite institutions—Yale, Amherst, the University of North Carolina, and Occidental College—reveal unfair procedures that come close to presuming guilt and severely restrict the opportunity for accused students not only to defend themselves, but even to prove their innocence. The problem continues to grow worse, and there is as yet no sign of a return to due process in campus tribunals.

Key Points

  1. An April 4, 2011, U.S. Department of Education Office for Civil Rights document dramatically reinterpreted the sexual assault case procedures required for colleges to comply with Title IX.
  2. Threatening the withholding of federal funds, the OCR ordered all colleges to adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard rather than the stricter beyond-a-reasonable-doubt standard.
  3. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings, the new standard makes it too easy to “convict” the accused.
  4. The OCR also ruled that colleges that allowed appeals in the disciplinary process must allow accusers to appeal a not-guilty finding, something that would not happen in the criminal system because of prohibitions on double jeopardy.
  5. Even before issuance of the new OCR document, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

On April 4, 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) released a document dramatically reinterpreting Title IX, the federal law that prohibits gender discrimination in colleges and universities that receive federal funds.[1] The document issued by the OCR was a “Dear Colleague” letter, an allegedly informal agency guidance that Department of Education officials claimed did not need to follow notice-and-comment rulemaking pursuant to the Administrative Procedure Act.

The “Dear Colleague” letter specified the procedures that the OCR believed colleges and universities should follow in sexual assault cases in order to comply with Title IX. Although two Department of Education officials have publicly noted that the letter does not have the force of law, this concession does not change its practical effect, which is to coerce universities into compliance.[2] Moreover, each change in Title IX requirements found in the letter increases the likelihood of a guilty finding in a campus sexual assault case.

The Myth: Institutional Negligence

Since 2011, efforts by the Administration to bring universities into compliance with the new mandates have attracted widespread support from politicians and the media. President Barack Obama convened a White House summit on the topic, Vice President Joseph Biden oversaw a task force, and the OCR issued further “guidance” in the form of a 45-page question-and-answer document that also acted as an informal set of rules.[3] In the Senate, Kirsten Gillibrand (D–NY) and Claire McCaskill (D–MO) have been the most outspoken supporters of this policy.

Both The New York Times and The Washington Post have published news articles portraying campuses as hotbeds of violent crime, with female students allegedly facing the risk of extremely high rates of sexual assault. The Times alone has run more than 20 articles on the topic since 2012, and the Post featured a multi-part series in 2015 based on a poll contending that one in five college women are sexually assaulted—a total it reached in part by redefining sexual assault to include such things as sex “coerced…through verbal…promises.”[4]

At the heart of this campaign is a belief—sincerely held in some instances—that college and university campuses are beset by a “rape culture,” in which the procedures for investigating and adjudicating sexual assault claims are so one-sided as to constitute gender discrimination against female accusers.[5] Only unprecedented federal intervention, according to this theory, can promote justice.

The Reality: American Colleges Railroad the Innocent

For those who have spent any time on campus in the past two decades, this argument seems counterintuitive. The contemporary academy is extraordinarily sensitive to real and perceived discrimination on issues of gender (as well as race and ethnicity). Faculties are increasingly dominated by race/class/gender pedagogy in the humanities and some of the social sciences, and there has been an explosion in the number of administrators responsible for dealing with student life and diversity issues.

Given these facts, it is difficult to see how the academy’s environment could be considered so indifferent to rape as to necessitate unprecedented federal intervention. The on-campus responses to the two highest-profile university rape claims of the past decade—the Duke University lacrosse case of 2006 and the University of Virginia allegations outlined in Rolling Stone in 2014—suggest that, far from being indifferent to rape, the campus environment tends to presume guilt[6] even when faced with non-credible rape allegations.[7]

Nevertheless, the Obama Administration issued new guidelines in 2011 directing colleges and universities to change the procedures they use to evaluate sexual assault allegations. These changes have the effect of dramatically increasing the likelihood that an accused student will be found guilty. Threatening the possible withholding of federal funds, the “Dear Colleague” letter:

  • Considered it a violation of Title IX to do anything but adjudicate sexual assault complaints utilizing the preponderance-of-evidence (50.01 percent) standard, in effect ordering colleges to change their procedures. When coupled with the preexisting denial of due process in most institutions’ disciplinary proceedings—a denial of meaningful legal representation, the lack of mandatory discovery of evidence uncovered by the college, and the inability of colleges to require testimony under oath—the new standard makes it much easier to “convict” an accused student.
  • Stated that colleges that allowed appeals in the disciplinary process (which means virtually all of them) must allow accusers to appeal a not-guilty finding, imposing a type of double-jeopardy principle for students accused of sexual assault.[8]
  • Chastised colleges for taking too long to investigate and adjudicate complaints, with the Obama Administration suggesting a 60-day cap on the entire process.
  • Discouraged colleges from allowing accused students to cross-examine their accusers even in cases in which the accuser is the only witness in a disciplinary hearing that could end with the accused being found responsible for committing sexual assault.[9]

The “Dear Colleague” letter imposed a nationwide set of standards, and then-OCR head Russlynn Ali also made clear that the office would welcome the filing of gender discrimination claims by students against their own schools. On May 1, 2014, in a highly unusual move, the OCR revealed the identities of the colleges and universities under investigation (currently more than 200) but refused to “disclose any case-specific facts or details about the institutions under investigation.” The OCR’s inconsistent approach to transparency has left the public with the impression of widespread problems justifying a panicked federal response without the opportunity to evaluate the credibility of these complaints.[10]

In response to the OCR’s guidance, several new campus groups addressing the issue of rape have encouraged self-described “survivors” to file Title IX complaints. The two most prominent, SurvJustice and Know Your IX, have opposed anything approximating fair procedures for college students accused of offenses—while effectively downplaying the idea of requiring colleges to turn sexual assault adjudications over to the courts. Know Your IX co-founder Dana Bolger explained why to The New York Times. The “college disciplinary system,” she argued, is superior to a “criminal justice system [that] notoriously fails rape survivors,” since “police disbelieve victims, prosecutors refuse to take on the majority of cases because they lack witnesses, the standard of proof is impossibly high and juries buy into the rape myths that saturate our society and acquit perpetrators.”[11]

Although sexual assault obviously should not be tolerated and accusations of rape should be treated seriously, it is simply not true that American colleges are systematically turning a blind eye to such violence. The proliferation of activist groups on the side of “victims” suggests, if anything, an extreme desire to use the threat of severe sanctions to change cultural norms.[12]

Case Study #1: Yale University

The first major Obama-era Title IX complaint came from Yale University. In October 2010, pledges to the Delta Kappa Epsilon fraternity shouted something crude, albeit not illegal.[13] The resulting public backlash led to apologies from the fraternity members, suspension by the national fraternity of the local chapter’s ability to secure pledges, and abandonment of the university’s traditional free-speech absolutism to punish some of the students. The Yale Executive Committee declared that the statements “had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation’ and ‘imperiling the integrity and values of the University community.’”[14]

The fraternity’s spectacle was crass and violated norms of basic decency, but The Atlantic’s Caitlin Flanagan observed that it also could be seen as an “obvious reaction” to the oppressive atmosphere of political correctness on campus. In Flanagan’s opinion, referencing the leader of the 1964 Free Speech Movement at the University of California:

[The] closest you’re going to get to Mario Savio—sick at heart about the operation of the machine and willing to throw himself upon its gears and levers—is less the campus president of Human Rights Watch than the moron over at Phi Sigma Kappa who plans the Colonial Bros and Nava-Hos mixer.[15]

Despite apologies from the fraternity members and condemnation from the Yale administration, campus activists addressing the issue of rape seized on the incident to file a Title IX complaint against Yale. The administration quickly settled. In a voluntary resolution agreement with the OCR, the university agreed to hire various Title IX bureaucrats and to rework its campus sexual assault policy.[16] That policy “encompass[es] broad ranges of behavior,” since the definition of sexual assault employed by Yale is “more expansive” than the one that is used by the federal government or local law enforcement.[17] The university has never explained why it chose to redefine a term—sexual assault—commonly understood in both the law and culture, but in a 2013 document, it did provide examples of the sort of behavior that could lead the school to brand a student guilty of engaging in “nonconsensual sex.”[18]

Yale then set up a two-tier system to handle rape allegations. Formal claims would be handled by a newly created University-Wide Committee on Sexual Assault (UWC). The UWC process begins with an allegedly “impartial fact-finder” (whose employment comes through the university Title IX office, which has a repeat relationship with and is often attuned to the views of the regulators) who gathers “documents and conduct[s] interviews as necessary to reach a thorough understanding of the facts and circumstances surrounding the allegations of the complaint.” The investigator’s report serves as the evidentiary basis for the five-person committee that decides the fate of the accused student.[19]

The accused student cannot call relevant witnesses unless he can prove to the panel in advance that he “can offer potentially relevant information that was not conveyed to the fact-finder.”[20] In the rare cases in which a campus accuser also goes to the police, Yale’s disciplinary panel may—but is not required to—consider the evidence from an actual law enforcement investigation.

Finding the truth is all but incidental to Yale’s procedure. Lest the accuser be retraumatized (regarding an event that, at the time of the hearing, Yale has not established to have occurred), the accused student not only cannot cross-examine the accuser, but also has no right to be in the same room as she gives her testimony. The most input Yale allows the accused student is the submission of written questions for the panel to ask the accuser—if the panel chooses to do so. In essence, the accused student is found responsible for committing sexual assault if three of the five committee members find it more likely than not that a violation has been shown (usually, that the accuser’s version of events is more credible than the accused’s).[21]

These “formal” hearings are a paragon of due process when compared to the second avenue for Yale accusers to present their complaints. Under an “informal” process, which Yale used in about a dozen cases in 2011–2012, the accused student has no right to present evidence of his innocence; indeed, in at least one case, the accused student was not even informed about the specifics of the allegations against him.[22]

Yale Deputy Provost Stephanie Spangler justified this procedure by explaining that the university’s “goal is to achieve a resolution that is desired by the [accuser] and acceptable to the [accused].” Further, one goal of the university process is to help accusers “regain their sense of well-being.”[23]

It is impossible to know what goes on behind closed doors, and perhaps the only real protection for a student accused through the informal process is a promise that the process will remain confidential. But in at least one high-profile case—that of former Yale quarterback Patrick Witt—an unknown party leaked the existence of a complaint first to the Rhodes Trust (Witt was under consideration for a Rhodes Scholarship) and then to The New York Times, which produced a front-page story that failed to describe the guilt-presuming procedures under which he was charged.[24] There was no indication that Yale ever investigated, much less punished, the person or persons who broke the university’s rules and shared the information about Witt’s case. When he wrote about the experience several years later, Witt recounted that Yale’s policy “almost ruined my life.”[25]

Witt was the first of many accused students victimized by Yale’s new policies.[26] For at least a year, the university’s definition of sexual misconduct was so broad as to include “emotional or economic abuse” by “roommates.” In one instance, a student was found not guilty but was nonetheless punished by the university, which ordered him to take “sexual consent training,” and on several occasions, Yale undertook investigations based on anonymous complaints, raising concerns that the new Title IX process could be used for revenge or ideological targeting.[27]

Among the faculty, an unknown male professor was subjected to a sexual harassment complaint from a female colleague. Yale investigated by speaking to the accusing professor and to the department chairman—but never informing the accused professor that charges had been filed against him, thereby robbing him of an opportunity to defend himself. The inquiry ended with the department chairman formally monitoring the male professor for an indefinite period. This incident produced scant public dissent among the faculty.

Case Study #2: Amherst College

As occurred with the fraternity pledge incident at Yale, a single event triggered Amherst’s explosion of Title IX activism. In October 2012, a former student named Angie Epifano penned a lengthy recollection of her experience as a self-described survivor of sexual assault. In May 2011, she wrote, a student acquaintance raped her. She did not report the incident to police, nor did she want the case adjudicated by a campus tribunal: “No thank you, I could barely handle seeing him from the opposite end of campus; I knew I couldn’t handle that level of negativity.”[28]

Epifano alleged shocking treatment from Amherst administrators. She claimed that the college’s sexual assault counselor, Gretchen Krull, told her not to report the crime and instead advised her to “forgive and forget.”[29] Soon thereafter, an Amherst dean, concerned about the student’s mental health, denied her request to study abroad in Africa. The dean allegedly informed her that “Africa is quite traumatizing, what with those horrible third-world conditions: disease…huts…lions!”

A campus administration committed to the truth might have asked some hard questions about Epifano’s veracity.[30] On a campus already known for its political correctness, for an unidentified dean to have made disparaging remarks about Africa seems extraordinarily unlikely.[31]

On October 18, 2012, Amherst President Carolyn “Biddy” Martin uncritically accepted Epifano’s presentation of events as “horrifying” and promised “consequences,” either with “procedures or [with] personnel.”[32] Within a few days, Gretchen Krull had resigned, with some speculating that she had been made a scapegoat.[33] Martin then appointed an eight-person committee to develop a new sexual assault adjudication procedure. A professor of women’s and gender studies chaired the panel, whose only other faculty member specialized in African–American literary and cultural studies; a campus activist addressing the issue of rape, Liya Richtman, represented student views.[34]

Future Know Your IX co-founder Dana Bolger, an Amherst student, hoped that the policy change would create a new culture on campus, since “we have all, at some time, in some way—through our jokes, our questions, our arguments—silenced a survivor” and “at some time, in some way, exerted our respective privileges—male, white, heterosexual, cisgendered, able-bodied—to silence our peers.”[35] The idea that 21st century Amherst College is dominated by white, heterosexual, male privilege suggests an unusual interpretation of reality. The type of guidelines developed in this ideological mess was unlikely to treat any accused student fairly, but it remained unclear whether Amherst’s new policy was so one-sided as to prevent even an innocent student from defending himself.

For several months, despite the claims of activists that Amherst was a campus awash in sexual assaults, no cases were filed to test the new system’s scope. Then, in late 2013, Amherst got its first post-Epifano claim.

In a column published in June 2015, Washington Post blogger Radley Balko wondered why so many high-profile campus rape allegations have proved to be unfounded. He offered several reasons, including the following:

It may be that activists deliberately seek out and champion the ambiguous cases to demonstrate their commitment to the cause. This is pretty common among ideologues. (I see it often among my fellow libertarians.) You show your bona fides by taking a hard line even on those issues, incidents and scenarios that scream out for subtlety. You see this in some of the reform proposals put forth by anti-campus rape activists, such as laws requiring explicit consent before each progression of sexual activity or in staking out absurd positions such as “drunk sex is always rape.”[36]

Balko could have been describing the Amherst case, which arose out of an incident in February 2012. Following an apparently consensual sexual encounter with another student, the female accuser apparently had a change of heart.[37] She also eventually fell in with a new group of friends: many of the campus activists addressing the issue of rape who were energized by the Epifano essay. By fall 2012—inspired, she wrote, by Epifano’s article—she published an essay at AC Voice, a webzine for which several in the group wrote. The female accuser now reinterpreted the incident of the previous semester as a sexual assault in spite of the fact that most of the accuser’s anger appeared to be directed not at her alleged assaulter, but instead at a “former friend” who had treated her contemptuously after discovering who the accused man was.[38]

The female student waited for another year before filing a sexual assault claim at Amherst, and the investigation and adjudication of the case showcased the unfairness of the college’s new policy—which, to be clear, is typical of how most schools now handle the issue. A hired investigator spent a day on campus interviewing witnesses; when asked whether she had any text messages or e-mails about the incident, the accuser said that she had none. During the hearing, the accuser admitted that she had texted after the incident, but none of the panelists asked her to explain why she had told the investigator otherwise. To corroborate her assault claim, the accuser said that she had invited someone over to her room after the incident to talk and comfort her. None of the panelists asked the identity of this mystery witness, who had not been interviewed by Amherst’s investigator.

Moreover, the accused student could not raise these questions effectively: Prohibited from having a lawyer by his side in the hearing, he was required under Amherst’s new rules to submit written questions for the accuser before the hearing. As legal blogger Scott Greenfield has noted:

Submitting questions isn’t a particularly effective way to confront an accusation. Questions beget answers, and answers beget more questions. Putting aside whether [the accused student] is adept at formulating incisive questions, no one can effectively confront an accuser without hearing her answers and following up.[39]

The accuser said that she had consented but in the middle of the process had revoked that consent; the accused student said that he was too drunk to recall anything that happened. This portrayal of events was enough for the panel to find the accused student responsible. Amherst promptly expelled him.[40]

The accused student hired a lawyer who subsequently uncovered considerable evidence undercutting the accuser’s credibility, including post-incident text messages (which the accuser had implied to Amherst’s investigator did not exist). Any fair investigation, of course, would have discovered this at the time. Amherst’s response? The accused student had failed to uncover this information within seven days of the disciplinary hearing, so he was now out of luck.

The student filed a federal lawsuit, which remains pending. In that lawsuit, Amherst has contended that the process worked as the college intended in this case.[41]

Case Study #3: University of North Carolina at Chapel Hill

While Amherst was finding an innocent student responsible for rape, another incident occurred at the University of North Carolina at Chapel Hill (UNC). Inspired by the activities at Amherst and Yale and in constant contact with the accusers there, she later told The New York Times, a student named Andrea Pino stepped forward.[42]

Pino claimed that in March 2012, another UNC student raped her at an off-campus party. (Because she has admitted that she had never seen the man before that evening and never saw him again, she left it unclear as to how she concluded that her attacker attended UNC.) Pino elected not to report the alleged assault to police, nor did she file a complaint through the university because, she later said, unnamed other students doubted that it would do any good. Instead, Pino went to a UNC academic employee about her plight, and this person allegedly told her she was lazy.

The identity of the unnamed figure who made the “lazy” remark has shifted depending on the reporter interviewing Pino. According to Inside Higher Ed’s Allie Grasgreen, Pino said that “an academic adviser told her she was lazy when her experience impacted her performance in the classroom.”[43] ESPNW’s Allison Glock, on the other hand, quoted Pino as saying that “when I explained to a professor what was happening and how it was affecting my grades, I was told I was lazy, and it was suggested that maybe I couldn’t handle Carolina.”[44]

Neither Grasgreen, who identified the “lazy” comment as coming from an academic adviser, nor Glock, who quoted Pino as attributing the remark to a professor in one of her courses, appears to have reached out to the unnamed academic adviser/professor for comment on whether Pino’s story was actually true. Nor did the documentary filmmakers responsible for The Hunting Ground, which presented Pino’s tale uncritically. Again, it is very unlikely that a UNC professor or academic adviser, having been informed by a student that someone had raped her, would respond by calling the student lazy.

As Pino was portraying herself as victimized by a gender-hostile administration, UNC was actually revising its policies to make it easier for students like Pino to see their alleged attackers found guilty. In 2012, the university removed sexual assault cases from the jurisdiction of its Student Honor Court and turned them over to a special new panel that handled only allegations of sexual assault, claiming that students could not be sufficiently trained to handle such cases fairly. Given the timing, however, this decision appears more likely to have been motivated by a desire to accommodate the OCR’s “Dear Colleague” letter, since the move allowed UNC to shift its burden of proof in sexual assault cases (and only in sexual assault cases) from the Honor Court’s standard of beyond a reasonable doubt to a preponderance of the evidence, something required by the letter.

Melinda Manning, an assistant dean of students, rejoiced at the abandonment of a policy that discouraged “victims” from coming forward. Summarizing the dean’s views after an interview, Inside Higher Ed’s Allie Grasgreen reported Manning’s view that the earlier system discouraged reporting by “requiring victims to be judged by a roomful of peers.”[45] Of course, a university disciplinary system judges the accused students, not the accusers, and administrators should know better. Manning resigned the following year, claiming that unnamed UNC administrators had pressured her to underreport rape claims; the university fired back with a document claiming that Manning had underreported filings.[46] The ex-dean joined several accusers in filing a Title IX complaint against UNC. As with all such documents, the OCR declined to make the filing public, and contemporaneous press reports suggested alternatively that it was damning or frivolous.[47]

In any event, UNC spent nearly $200,000 on a consultant to rework its Title IX mechanisms and hired seven new staff employees to deal with the matter at an annual cost of around $500,000 before unveiling yet another new sexual assault procedure, this one even less friendly to the rights of the accused than the preceding one.[48] By this point, North Carolina had passed a law requiring colleges to permit students accused of disciplinary offenses to have access to a lawyer. (North Dakota is the only other state to have such a law.) An investigator, hired and overseen by the Title IX office, is not compelled to share his or her evidence with the accused; he or she must only produce a draft of his or her report, effectively precluding the accused from offering exculpatory material during the process. Only under limited circumstances can the accused student introduce new evidence at the hearing.

The accused student’s attorney can examine a draft of the investigator’s report, but only by coming to UNC and promising not to photograph or copy the report. Once the hearing begins, the accused student’s lawyer, as dictated by state law, may attend it but may not cross-examine the accuser; he or she may only submit questions to the hearing chairman, who can ask the questions, modify them, or simply move on. The hearing procedures guarantee neither that the lawyer can even see the accuser as she gives her answers nor that he or she can cross-examine other witnesses.[49]

The new procedures maintained the lower preponderance-of-evidence standard, but even though the OCR is silent on the issue of unanimous findings, UNC now allows a student to be, in essence, found responsible for committing sexual assault based on a two-to-one vote of the disciplinary panel. The guidelines do not explain why the university followed this course.

Even after a student graduates, he can still be sanctioned by UNC. The school allows the filing of anonymous reports of sexual assault to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” The policy’s wording suggests that the university simply assumes that the assault has occurred, based solely on the anonymous filing. UNC’s policy also has no equivalent of a statute of limitations, a deficiency that allows for the filing of complaints years after the alleged event even when both the accuser and the accused are no longer students at the school.[50] Among elite universities, only Harvard has such an open-ended policy, which raises the question of whether a university could use a years-after-the-fact sexual assault claim to revoke a degree.

Case Study #4: Occidental College

On the West Coast, the most aggressive Title IX activism has been at Occidental College. As at UNC, Yale, and Amherst, Occidental appeared to have a disciplinary structure that denied meaningful due process to the accused. Well before “affirmative consent” laws were enacted in California, Occidental policy maintained that a student who obtained such consent could nonetheless be deemed a rapist. Many have criticized so-called affirmative consent policies as unrealistic and damaging.[51] The college’s sexual assault policy denied the accused student a right to counsel in the proceedings while informing him that terms like “innocence” and “burdens of proof” were “not applicable.”[52] A healthy majority of the undergraduates—currently 56 percent, with 57 percent in the most recently admitted class—are women, and 50 percent of the college’s professors are women.[53]

Nonetheless, according to a small group of campus activists, the school turned a blind eye to sexual assault on campus. In 2013, a handful of self-described survivors, joined by faculty members Danielle Dirks and Caroline Heldman, formed a group called the Oxy Sexual Assault Coalition, or OSAC, which denounced the “yes-might-not-mean-yes” policy as insufficiently protective of accusers. The group adopted a tagline of “because rape is a crime”—even as Dirks (speaking, she said, “as a criminologist”) announced that she had “given up on the criminal justice system.”[54]

OSAC had a preference for adjudicating sexual assaults through college tribunals, even though these assaults would usually be felony offenses in the criminal courts. As explained by Dirks, “College campuses, which are supposed to be the bastions of cutting-edge knowledge and a chance to shape the rest of the country, actually can do right.”[55] Celebrity attorney Gloria Allred involved herself, representing several Occidental students who filed Title IX complaints against the college, which quickly settled.

The college attracted national attention after expelling a student for rape—despite a police report concluding that no rape had occurred and despite text messages from the accuser checking on whether the accused student had a condom and telling a friend, “I’m going to have sex now.”[56] Occidental reached this decision by contending that while both students were intoxicated, the female student’s drunkenness rendered her unable to consent to intercourse that her own text messages showed she had initiated.

By comparison, even Yale’s “expansive definition of sexual assault” appears to exclude the kind of behavior that Occidental deemed rape. Yale’s guidelines cite an instance of the parties’ “send[ing] a few texts” discussing their plans for intercourse and then confirming those plans once they arrived in the bedroom as an example of “consensual sex.”[57]

In an essay for the Harvard Law Review, Harvard Law professor Janet Halley criticized the “pressure on schools to hold students responsible for serious harm even when—precisely when—there can be no certainty about who is to blame for it. Such calls are core to every witch hunt.”[58] In 2013, the number of reported sexual assaults at Occidental increased from 10 (in 2012) to 60. This figure meant that Occidental alone, with a female enrollment of just over 1,100, accounted for 40 percent of the total increase in reported sexual assaults at all of California’s four-year public and private colleges and universities.[59] As attorney Mark Hathaway has noted, Occidental’s rate of reported sexual assaults in 2013 was 16 times higher than that of the next 10 California colleges and universities combined.[60] It could be, of course, that this Los Angeles liberal arts campus is a statistical anomaly and that it really is very dangerous, but such an interpretation seems very unlikely.

Conclusion

Campus activists addressing the issue of rape have assiduously conveyed the impression that such institutions as Yale University, Amherst College, the University of North Carolina, and Occidental College are led by administrators who ignore widespread criminality. Sexual assaults on college campuses do occur and are a serious issue, but justice requires procedures that afford due process both to accusers and to the accused. Yet even before the OCR’s “Dear Colleague” letter, many schools denied meaningful due process to students accused of sexual assault, and so-called reforms since 2011 have only made the problem worse.

—KC (Robert David) Johnson is a Professor of American History at Brooklyn College and the City University of New York Graduate Center.

About the Author

Show references in this report

[1] 20 U.S. Code § 1681.

[2] Ashe Schow, “Education Department Officials’ Candid Acknowledgement,” Washington Examiner, October 7, 2015, http://www.washingtonexaminer.com/education-department-officials-candid-acknowledgement/article/2573581 (accessed October 13, 2015).

[3] U.S. Department of Education, Office for Civil Rights, “Notice of Language Assistance: Questions and Answers on Title IX and Sexual Violence,” http://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf (accessed September 24, 2015).

[4] KC Johnson and Stuart Taylor, Jr., “More College Rape Hype—This Time from the Washington Post,” The Weekly Standard, June 16, 2015, http://www.weeklystandard.com/blogs/more-college-rape-hype-time-washington-post_972536.html (accessed September 24, 2015).

[5] U.S. Department of Education, Office for Civil Rights, “Dear Colleague” Letter, April 4, 2011, http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html (accessed October 1, 2015).

[6] “Guilt” as used in this paper refers to the fact of having committed a specific offense. This is distinguishable from a “finding of guilt,” which in the criminal justice system is proved beyond a reasonable doubt; a “finding of liability,” which in the civil system is proved on a preponderance of the evidence standard; and a “finding of responsibility,” which is used in the campus “criminal justice” system, which historically has used standards anywhere from preponderance to beyond a reasonable doubt.

[7] For the relationship between faculty pedagogical developments and campus attitudes toward sexual assault, see Stuart Taylor, Jr., and KC Johnson, Until Proven Innocent: The Shameful Injustices of the Duke Lacrosse Rape Case (New York: Thomas Dunne, 2007), pp. 103–117.

[8] While the Double Jeopardy Clause in the Fifth Amendment is not formally applicable in a non-criminal context, the principles of fairness still apply, and some have argued that there is a colorable argument that the clause could be applied to quasi-criminal proceedings. See, for example, Andrew Kloster, “The Violence Against Women Act and Double Jeopardy in Higher Education,” Stanford Law Review Online, Vol. 65 (October 9, 2012), pp. 52–58, http://www.stanfordlawreview.org/online/vawa-double-jeopardy (accessed July 8, 2016).

[9] U.S. Department of Education, “Dear Colleague” Letter, April 4, 2011.

[10] News release, “U.S. Department of Education Releases List of Higher Education Institutions with Open Title IX Sexual Violence Investigations,” U.S. Department of Education, May 1, 2014, http://www.ed.gov/news/press-releases/us-department-education-releases-list-higher-education-institutions-open-title-i (accessed September 26, 2015).

[11] Dana Bolger, “Room for Debate: Colleges Help Rape Survivors Where Courts Fail,” The New York Times, March 4, 2014, http://www.nytimes.com/roomfordebate/2013/03/12/why-should-colleges-judge-rape-accusations/colleges-help-rape-survivors-where-courts-fail (accessed September 26, 2015).

[12] The term “victim” presumes guilt of the accused and will appear out of quotation marks only when referring to an individual whose assailant has been convicted in a criminal proceeding.

[13] The original comments are available at Foundation for Individual Rights in Education, Cases. “Yale University: Fraternity Suspended Five years for ‘Intimidating’ Satirical Chant,” https://www.thefire.org/cases/yale-university-fraternity-suspended-five-years-for-intimidating-satirical-chant/ (accessed July 8, 2016).

[14] See Mary Miller, Dean, Yale College, letter to faculty and students of Yale College, YaleNews, May 17, 2011, http://news.yale.edu/2011/05/17/letter-dean-regarding-disciplinary-charges-against-dke (accessed March 8, 2016). For background on the incident, see Adam Kissel, Vice President of Programs, Foundation for Individual Rights in Education, letter to Yale President Richard C. Levin, June 17, 2011, https://www.thefire.org/fire-letter-to-yale-president-richard-c-levin-june-17-2011/ (accessed September 26, 2015).

[15] Caitlin Flanagan, “That’s Not Funny,” The Atlantic, September 2015, http://www.theatlantic.com/magazine/archive/2015/09/thats-not-funny/399335/ (accessed September 26, 2015).

[16] U.S. Department of Education, “Voluntary Resolution Agreement: Yale University,” Complaint No. 01-11-2027, June 11, 2012, https://www2.ed.gov/about/offices/list/ocr/docs/investigations/01112027-b.pdf (accessed September 26, 2015).

[17] Yale University, Office of the Provost, Report of Complaints of Sexual Misconduct Brought Forward from January 1, 2015 Through June 30, 2015, http://provost.yale.edu/sites/default/files/files/July2015_Report_FINAL.pdf (accessed September 26, 2015).

[18] Yale University, “Sexual Misconduct Scenarios,” September 9, 2013, http://smr.yale.edu/sites/default/files/files/Sexual-Misconduct-Scenarios.pdf (accessed September 26, 2015).

[19] Yale University, Office of the Provost, “UWC Procedures,” last updated May 8, 2015, http://provost.yale.edu/uwc/procedures (accessed September 26, 2015).

[20] The accuser cannot call witnesses either, although because the system is intended to resolve complaints filed by accusers, the university itself is likely to call corroborating witnesses. To be neutral, colleges should seek out “defense” witnesses as well, given that the system is supposed to resemble a “civil” process, if anything.

[21] Yale University, Office of the Provost, “UWC Procedures.”

[22] Patrick Witt, “A Sexual Harassment Policy that Nearly Ruined My Life,” Boston Globe, November 3, 2014, https://www.bostonglobe.com/opinion/2014/11/03/sexual-harassment-policy-that-nearly-ruined-life/hY3XrZrOdXjvX2SSvuciPN/story.html (accessed October 1, 2015).

[23] Yale University, Office of the Provost, Report of Complaints of Sexual Misconduct Brought Forward from January 1, 2012 Through June 30, 2012, http://provost.yale.edu/sites/default/files/files/Final_Report_Sexual_Misconduct_Complaints_7-31-2012.pdf (accessed September 26, 2015).

[24] Richard Pérez-Peña, “At Yale, the Collapse of a Rhodes Scholar Candidacy,” The New York Times, January 26, 2012, http://www.nytimes.com/2012/01/27/sports/ncaafootball/at-yale-the-collapse-of-a-rhodes-scholar-candidacy.html (accessed October 12, 2015).

[25] Witt, “A Sexual Harassment Policy that Nearly Ruined My Life.”

[26] More information is now available because Yale produces biennial reports listing all sexual assault adjudications as part of its settlement with the OCR.

[27] For the summary reports, see Yale University, Office of the Provost, “Reports: Complaints of Sexual Misconduct,” http://provost.yale.edu/title-ix/reports (accessed September 26, 2015).

[28] Angie Epifano, “An Account of Sexual Assault at Amherst College,” The Amherst Student, October 17, 2012, http://amherststudent.amherst.edu/?q=article/2012/10/17/account-sexual-assault-amherst-college (accessed September 26, 2015).

[29] Ben Storrow, “Amherst College Sexual Assault Counselor Leaves,” Daily Hampshire Gazette, October 31, 2012, http://www.gazettenet.com/home/2579443-95/college-sexual-assault-amherst (accessed March 9, 2016).

[30] Kelly and Shaina Mishkin, “Angie Epifano Profile: How One Former Amherst Student Sparked a Movement Against Sexual Assault,” Huffington Post, June 2, 2013, http://www.huffingtonpost.com/2013/06/02/angie-epifano-profile_n_3353941.html (accessed March 8, 2016).

[31] Wendy Kaminer, “What to Make of the Rape Accusations at Amherst College?” The Atlantic, November 21 2012, http://www.theatlantic.com/national/archive/2012/11/what-to-make-of-the-rape-accusations-at-amherst-college/265522/ (accessed September 26, 2015).

[32] Amherst College, “President Martin’s Statement on Sexual Assault,” October 18, 2012, https://www.amherst.edu/aboutamherst/sexual_respect/statements/node/436469 (accessed September 26, 2015).

[33] Storrow, “Amherst College Sexual Assault Counselor Leaves.”

[34] Amherst College, “Letter from the President on the Formation of the Special Oversight Committee on Sexual Misconduct,” October 31, 2012, https://www.amherst.edu/aboutamherst/sexual_respect/statements/node/438205 (accessed September 26, 2015).

[35] Dana Bolger, “Surviving, at Amherst College,” AC Voice, October 23, 2015, http://acvoice.com/2012/10/23/surviving-at-amherst-college/ (accessed September 26, 2015).

[36] Radley Balko, “Why Do High-Profile Campus Rape Stories Keep Falling Apart?” The Washington Post, June 2, 2015, https://www.washingtonpost.com/news/the-watch/wp/2015/06/02/why-do-high-profile-campus-rape-stories-keep-falling-apart/ (accessed September 26, 2015). Emphasis in original.

[37] For the full text of the message exchange, see John Doe v. Amherst College, U.S. District Court for the District of Massachusetts, Case 3:15-cv-30097, Document 1-6, “Affidavit of EK,” filed May 29, 2015, pp. 6–23, https://kcjohnson.files.wordpress.com/2013/08/amherst-text-messages-ii.pdf (accessed October 1, 2015).

[38] “Culture of Silence,” AC Voice, October 25, 2012, https://web.archive.org/web/20140410134858/http:/acvoice.com/2012/10/25/culture-of-silence/ (accessed October 1, 2015).

[39] Scott Greenfield, “Judge Joel Pressman to UC San Diego: I Got a Digit for You,” Simple Justice, July 15, 2015, http://blog.simplejustice.us/2015/07/14/judge-joel-pressman-to-uc-san-diego-i-got-a-digit-for-you/ (accessed September 26, 2015).

[40] Transcript of hearing “in the Matter of John Doe,” Amherst College, Sexual Misconduct Hearing Board, December 12, 2013, https://kcjohnson.files.wordpress.com/2013/08/amherst-transcript.pdf (accessed September 26, 2015).

[41] For lawsuit complaint, see John Doe v. Amherst College, U.S. District Court for the District of Massachusetts, Case 3:15-cv-30097, Document 1, “Complaint and Jury Demand,” filed May 29, 2015, https://kcjohnson.files.wordpress.com/2013/08/amherst-complaint.pdf (accessed October 1, 2015); for Amherst’s response, see John Doe v. Amherst College, U.S. District Court for the District of Massachusetts, Case 3:15-cv-30097, Document 23, “Defendants’ Answer,” filed July 20, 2015, https://kcjohnson.files.wordpress.com/2013/08/amherst-reply.pdf (accessed October 1, 2015).

[42] Richard Pérez-Peña, “College Groups Connect to Fight Sexual Assault,” The New York Times, March 19, 2013, http://www.nytimes.com/2013/03/20/education/activists-at-colleges-network-to-fight-sexual-assault.html (accessed September 26, 2015).

[43] Allie Grasgreen, “Holding Colleges Responsible,” Inside Higher Ed, June 11, 2012, https://www.insidehighered.com/news/2013/06/11/student-activists-spur-sexual-assault-complaints-some-say-education-department (accessed September 26, 2015).

[44] Allison Glock, “Fighting Rape on Campus: Talking with Two Heroes from ‘The Hunting Ground,’” ESPNW, April 29, 2015, http://espn.go.com/espnw/athletes-life/article/12776315/talking-two-heroes-hunting-ground (accessed September 26, 2015).

[45] Allie Grasgreen, “Tide Shifts on Title IX,” Inside Higher Ed, April 24, 2012, https://www.insidehighered.com/news/2012/04/24/ocr-dear-colleague-letter-prompts-big-change-sexual-assault-hearings-unc (accessed September 26, 2015).

[46] University of North Carolina, “Re: OCR Complaint No. 11-13-2051,” March 21, 2013, http://campusconversation.web.unc.edu/files/2013/03/University-Response-to-OCR-Complaint-No-11-13-2051.pdf (accessed September 26, 2015).

[47] The Daily Tar Heel, for example, reported that the complaint alleged the serious charge that university lawyers pressured a dean to underreport sexual assault cases. The Winston-Salem Journal, by contrast, reported that plaintiffs alleged that the university’s “not believing” them constituted mishandling of their complaints. Andy Thomason and Caitlin McCabe, “Complaint: UNC Pressured Dean to Underreport Sexual Assault Cases,” Daily Tar Heel, January 17, 2013, http://www.dailytarheel.com/article/2013/01/50f8ca9bc71da (accessed October 2, 2015); McClatchy-Tribune, “Federal Complaint Alleges UNC Violates Assault Victims’ Rights,” Winston-Salem Journal, January 21, 2013, http://www.journalnow.com/news/state_region/federal-complaint-claims-unc-violated-assault-victims-rights/article_785c7fc4-6435-11e2-9181-0019bb30f31a.html (accessed October 2, 2015).

[48] Harry Painter, “Title IX Compliance and Then Some,” John William Pope Center for Higher Education Policy Commentaries, April 4, 2014, http://www.popecenter.org/commentaries/article.html?id=2992%23.u0wkba1duoc (accessed September 26, 2015).

[49] University of North Carolina, “Procedures for Reporting and Responding to Complaints of Discrimination, Harassment, and Related Misconduct Involving a Student as the Responding Party,” http://sexualassaultanddiscriminationpolicy.unc.edu/files/2014/08/UNCCH_Procedures_for_Students_as_the_Responding_Party1.pdf (accessed September 26, 2015).

[50] University of North Carolina, Office of the Dean of Students, “Prohibited Discrimination, Harassment and Related Misconduct,” https://deanofstudents.unc.edu/incident-reporting/prohibited-harassmentsexual-misconduct (accessed September 26, 2015).

[51] For representative critiques, see Samantha Harris, “California ‘Affirmative Consent’ Bill Puts Colleges in Untenable Position,” Foundation for Individual Rights in Education, June 2, 2014, https://www.thefire.org/california-affirmative-consent-bill-puts-colleges-in-untenable-position/ (accessed May 5, 2016); Tamara Rice Lave, “Affirmative Consent and Shifting the Burden of Proof,” PrawfsBlog, September 3, 2015, http://prawfsblawg.blogs.com/prawfsblawg/2015/09/affirmative-consent-and-switching-the-burden-of-proof.html (accessed May 5, 2016); Scott Greenfield, “Affirmative Consent and the Fuzzy Legal Standard,” Simple Justice, March 2, 2016, http://blog.simplejustice.us/2016/03/02/affirmative-consent-and-the-fuzzy-legal-standard/ (accessed May 5, 2016).

[52] Occidental College, “Grievance and Appeals Procedures,” Student Handbook, last updated January 3, 2013, https://web.archive.org/web/20130421025641/http://www.oxy.edu/student-handbook/general-college-policies/sexual-misconduct-policy-students/grievance-appeals (accessed September 26, 2015).

[53] Occidental College, “By the Numbers,” http://www.oxy.edu/our-story/numbers (accessed September 26, 2015).

[54] Oxy Sexual Assault Coalition, web site, https://oxysexualassaultcoalition.wordpress.com/ (accessed September 26, 2015); Michelle Goldberg, “Why the Campus Rape Crisis Confounds Colleges,” The Nation, June 23, 2014, http://www.thenation.com/article/why-campus-rape-crisis-confounds-colleges/ (accessed September 26, 2015).

[55] Goldberg, “Why the Campus Rape Crisis Confounds Colleges.”

[56] Richard Dorment, “Occidental Justice,” Esquire, March 25, 2015, http://www.esquire.com/news-politics/a33751/occidental-justice-case/ (accessed September 26, 2015).

[57] Yale University, “Sexual Misconduct Scenarios.”

[58] Janet Halley, “Trading the Megaphone for the Gavel in Title IX Enforcement,” Harvard Law Review Forum, February 18, 2015, http://harvardlawreview.org/2015/02/trading-the-megaphone-for-the-gavel-in-title-ix-enforcement-2/ (accessed September 28, 2015).

[59] U.S. Department of Education, Office of Postsecondary Education, “The Campus Safety and Security Data Analysis Cutting Tool,” http://ope.ed.gov/security/index.aspx (accessed September 28, 2015).

[60] Mark Hathaway, “Male Students Discriminated Against in Sexual Misconduct Inquiries,” Metropolitan News-Enterprise, July 27, 2015, http://www.metnews.com/articles/2015/inmyopinion072715.htm (accessed September 28, 2015).