The Title IX Juggernaut

Article here. Excerpt:

'Major miscarriages of justice often stem from unsound judicial and administrative procedures. Consider the story of Grant Neal, a student on an athletic scholarship at Colorado State University-Pueblo. Neal was suspended for sexual assault after he had consensual sexual intercourse with an unnamed woman. He has now filed suit to challenge that suspension, both against the CSU-Pueblo and the United States Department of Education and its Office for Civil Rights.

He should win, and for good reason. All legal actions begin with complaints, usually from a purported victim. But Neal’s case was different. The charge was brought against him by a “peer” of the woman involved, who, according to the allegations in the complaint, denied that she had been raped. The purported victim told the school investigator: “He’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla.” That should have put an end to the entire matter. Nonetheless, CSU-Pueblo has suspended Neal as long as his alleged victim remains on campus. The stigma of the sanction makes it impossible for him to transfer anywhere else. It is a classic case of defamation by public action, for which recourse is all too difficult to obtain.

The university’s actions were heavily influenced by the Kafkaesque rules announced in the well-known and highly controversial Dear Colleague letter issued by the Department of Education’s Office for Civil Rights (OCR) in 2011 (I have sharply criticized its procedures for dealing with cases of sexual harassment elsewhere). The letter uses shaky data to claim that sexual harassment is a serious problem on campus, and it insists that schools handle cases of it aggressively. But the OCR’s guidance violates the fundamental tenets of due process that are urgently needed in a criminal or administrative enforcement proceeding, where state power is at its greatest. Due process guarantees are far older than our country, and they were put into place to check overweening executive power. The standard rules require at a minimum that people be given notice of the charges that they face, and an opportunity to defend themselves against those charges before a neutral tribunal. The OCR, however, advocates that a mere preponderance of evidence—rather than clear and convincing evidence—is all that is required to impose heavy sanctions on an alleged aggressor after a hearing. And during such hearings, cross-examination is discouraged.'