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April 4 2017

New Report Slams Title IX Hearings as Unfair to the Accused

via Heat Street
by Jillian Kay Melchior

Students accused of sexual assault are deprived of a fair hearing and basic due process rights under the Title IX proceedings, the American College of Trial Lawyers claims in a scathing new report.

“Under the current system everyone loses: accused students are deprived of their fundamental fairness, complainants’ experiences are unintentionally eroded and undermined, and colleges and universities are trapped between the two, while facing a potential loss of federal funding,” the report says.

Title IX is a 1972 federal law prohibiting gender-based discrimination. But under the Obama administration, the Education Department’s Office of Civil Rights greatly expanded the federal government’s interpretation of the law, establishing new procedures for colleges and universities to respond to allegations of sexual harassment and assault.

Under that guidance, the standard of proof was not “innocent until proven guilty” but a mere “preponderance of evidence”—meaning that a student could be punished if administrators were just “50.01 percent certain” they were guilty, as the Foundation for Individual Rights in Education (FIRE) put it.

In addition to decrying the lack of due process for the accused, the American College of Trial Lawyers also raises concerns that the federal government has established a conflict of interest for administrators.

Universities can face federal investigations and lose federal funding if they fail to comply with Title IX. “These not-so-subtle pressures may contribute to partially discriminatory investigations and the absence of protection for the accused,” the report says.

The legal proceedings outlined under the Obama administration’s “Dear Colleague” letter have concerned many authorities in law and higher education, the report notes.

For instance, 28 members of Harvard law school faculty said the trials “lack the most basic elements of fairness and due process” and “are overwhelmingly stacked against the accused.”

Their colleagues at Penn wrote that the federal government had exerted “improper pressure upon universities to adopt procedures that do not afford fundamental fairness.”

The American College of Trial Lawyers notes the growing number of legal challenges brought against universities by accused or disciplined students.

It mentions a George Mason University case where the court found that the Title IX process had called into question the student’s reputation and future prospects without giving him a “constitutionally adequate process.” It also looks at cases at the University of Southern California, Brandeis University, and Washington & Lee University, where the rights of accused students weren’t sufficiently protected.

That’s just a small sampling; FIRE recently tallied more than 130 students who have brought legal challenges in recent years, claiming they were wrongly disciplined under Title IX.

When sexual-assault investigations and hearings are unfair, they undermine justice—including for victims of sexual assault, the American College of Trial Lawyers said.

The report quotes a retired federal judge who now teaches at Harvard Law: “If there is a widespread perception that the balance has tilted from no rights for victims to no due process for the accused, we risk a backlash. Benighted attitudes about rape and skepticism about women victims die hard. It only takes a few celebrated false accusations of rape to turn the clock back.”

The American College of Trial Lawyers urges the federal government and the academy to do more to provide an impartial investigation and hearing for students facing allegations of sexual assault or sexual harassment.

Specifically, the American College for Trial Lawyers calls for “a fair and impartial investigation and hearing by qualified factfinders, and granting the students the right to be advised and accompanied by counsel, to be permitted some form of cross-examination, to examine the evidence, to receive adequate factual findings, and to be found responsible only if the evidence satisfies the clear and convincing standard.”

These protections for the accused are elementary, the “essential elements of due process,” as the American College for Trial Lawyers notes. The fact that accused students have gone without these basic legal rights shows just how much of a sham the current Title IX proceedings are.

— Jillian Kay Melchior writes for Heat Street and is a fellow for the Steamboat Institute and the Independent Women’s Forum.

Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.
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