After a wave of activism created a frenzy over campus sexual assault, the Obama administration twice rewrote federal rules governing how allegations must be handled at colleges and universities. In response to this movement, too many schools have adopted procedures that force accused students to turn to the courts for any hope of justice.
In particular, since 2011, when the Department of Education reinterpreted Title IX to require that sexual assault cases be judged by a “preponderance of the evidence” — a lower burden of proof than is used in criminal cases — more than 100 accused students have sued their schools. In most of these recent cases the colleges have lost, as they should have.
Our close examination of court records shows how the new mandates and procedures amount to a de facto presumption of guilt. It also shows that colleges are at best incapable of adjudicating allegedly criminal conduct, and at worst hopelessly biased.
The recent cases can be divided into two groups. In the first are colleges that considerably broadened the definition of sexual assault and, in some instances, applied the new definition to students who did not violate the rules in place at the time of their alleged misconduct.
In 2015, Brown University broadened its definition to treat as sexual assault any “manipulation” that is followed by sex. The school then disciplined a male student for having violated this provision in 2014. As a Rhode Island judge, William Smith, observed in 2016, the vague provision could make a rapist of a male student who gave flowers to a female student before the two students had consensual sex.
In another case that ultimately went to court this year, Western New England University found a student guilty of violating a new “affirmative consent” rule — which defines anything other than “a clear, knowing and voluntary consent to any sexual activity” as equivalent to a “no” — that the school had adopted six weeks after his alleged misconduct.
The second group includes schools that violated their procedures, which were unfair to begin with. In one case, James Madison University allowed an accuser to provide an appeals board with new evidence without giving the accused a chance to respond, even though he had been found not guilty by his initial hearing panel. The appeals board overturned the original decision without checking whether the accuser’s new evidence might be misleading or irrelevant. (It was both.) The finding was set aside in December 2016 by a district judge, Elizabeth Dillon, who said that “no reasonable jury” could find the process fair.
That same month, an Oregon judge, Curtis Conover, found that the University of Oregon had denied an accused student — who had passed four polygraph tests — a chance to counter the school’s claim that inconsistencies in his accuser’s story had resulted from trauma.
Two weeks ago, a Colorado judge, Craig Shaffer, recommended that a lawsuit against Colorado State University-Pueblo proceed in a case where charges were filed by a co-worker of the alleged victim. Against university rules, an athletic trainer had sex with a football player. When a co-worker asked about the incident, the trainer hinted at a lack of consent, prompting the co-worker to file charges. Although the alleged victim maintained the incident was voluntary, CSU-Pueblo found the athlete guilty after an investigation that appeared to be, in the words of Judge Shaffer, “infected with discrimination.”
The most important of the recent decisions came last July, from the 2nd Circuit Court of Appeals in New York City. A three-judge panel made it easier for accused students to prove that their colleges’ disciplinary processes amount to discrimination against males and thus violate Title IX. Even if the university in the case was not motivated by anti-male animus, Judge Pierre Leval wrote for the panel, a “university that adopts, even temporarily, a policy of bias favoring one sex over the other in a disciplinary dispute, doing so in order to avoid liability or bad publicity, has practiced sex discrimination.”
Campus sexual assault is a serious problem, and evidence suggests that some accusers have indeed been treated unfairly by institutions in recent years, as many were in decades past. But the so-called epidemic is a myth. The best available crime statistics, based on face-to-face surveys of a large number of people at their homes by the Bureau of Justice Statistics, indicate that sexual assault dropped by more than half from 1997 to 2013. Even if many victims are not candid with bureau surveyors, as some analysts suggest, it would not affect the validity of rape rate comparisons from year to year.
The vast majority of schools we studied now use procedures that stack the deck against accused students. A system in which accused students get fair outcomes only by bringing expensive lawsuits — recourse that many cannot afford — is a deeply flawed one. Not only should the Department of Education scrap these federal mandates, but sexual assault allegations should be handled by the same police and prosecutors who deal with all other serious crimes.
KC Johnson and Stuart Taylor Jr. are co-authors of “The Campus Rape Frenzy: The Attack on Due Process at America's Universities.”