Students Guilty Until Proven Innocent


GUILTYPresident Obama, the Department of Education’s Office for Civil Rights (OCR), and the Department of Justice are forcing colleges to adopt policies to punish students for sexual harassment.

The federal law called Title IX, which prohibits sex discrimination by schools that receive federal funds, has long been misused to require equal participation of male and female students in athletic programs. Now the definition of sex discrimination by schools is being further expanded to include sexual harassment or assault by students against each other.

The OCR can terminate federal funding to schools that don’t comply with its edicts, and the Justice Dept. can litigate against schools it deems to have unacceptable sex discrimination and harassment policies. Facing the possibility of such actions, universities across the nation are making changes to their policies.

New Regs Stacked Against Accused

Twenty-eight professors at the Harvard Law School submitted a statement “strongly objecting” to Harvard’s new Sexual Harassment policy, which is “aimed at preventing sexual harassment and sexual violence based on gender, sexual orientation, and gender identity.” Their criticism of the policy that was put in place this fall was published in the Boston Globe on Oct. 15, 2014.

The law professors say the new regulations are “overwhelmingly stacked against the accused.” They state that the new policy is “inconsistent with many of the most basic principles we teach” because the regulations “lack the most basic elements of fairness and due process.”

As Phyllis Schlafly warned when the Dept. of Education became an influential force trying to judge and assert control over such policies on campuses:

Yet another Title IX directive issued by the Education Department’s Office for Civil Rights (OCR) has colleges scrambling to revamp their sexual harassment and assault policies. . . . Russlynn Ali, assistant secretary for the OCR, sent the ‘Dear Colleague’ letter to all colleges and universities that receive federal aid . . . essentially directing them to scrap basic rules of fairness in disciplinary procedures for alleged sexual harassment or sexual assault. . . . The most troubling aspect of the directive is a requirement that schools adopt a ‘preponderance of the evidence’ standard in sexual harassment and sexual assault cases, replacing the traditionally accepted ‘clear and convincing’ standard employed by many campus judiciaries. (Education Reporter, Sept. 2011)

The Dept. of Education’s OCR is currently investigating over 80 colleges, including Harvard, Princeton, Dartmouth, Amherst, Swarthmore, Emerson, and University of California campuses at Berkeley and Los Angeles. The federal government is dissatisfied with compliance at these colleges and claims they fail to adhere to the Dept. of Education’s OCR guidelines concerning sexual harassment and assault.

What Harvard Got Wrong

The Harvard law professors’ concerns about the new policies include:

  • “The absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”
  • There are no provisions that allow for the accused to receive “adequate representation.”
  • The same office performs the “functions of investigation, prosecution, fact-finding, and appellate review.”

Under the new policies, the Harvard Office for Sexual and Gender-Based Dispute Resolution investigates, rules on, and processes appeals concerning all complaints of harassment or assault. In addition to the absence of any checks or balances in this system, this is a Title IX compliance office, not exactly a non-biased base of operations. Title IX is the ruling that enforces equality of experience between males and females and such offices have a strongly feminist atmosphere.

The Harvard professors also point out that the school’s new rules ignore the complications arising from student drunkenness or drug use in these cases. They say that the school has “[adopted] rules governing sexual conduct between students both of whom are impaired or incapacitated, rules which are starkly one-sided as between complainants and respondents, and entirely inadequate to address the complex issues in these unfortunate situations involving extreme use and abuse of alcohol and drugs by our students.”

The Harvard committee that developed the new policies did not consult the School of Law or other departments before, during, or after launch. The professors’ complaint states:

Harvard failed to engage a broad group of faculty from its different schools, including the law school, in the development of the new sexual harassment policy. And Harvard imposed its new sexual harassment policy on all the schools by fiat without any adequate opportunity for consultation by the relevant faculties.

The professors write:

Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community.

The professors conclude:

We recognize that large amounts of federal funding may ultimately be at stake. But Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats. The issues at stake are vitally important to our students, faculties, and entire community.

Activism at Columbia

At Columbia University, a student the media has dubbed “Mattress Girl” has become a sensation. As part of her senior art thesis, she is carrying a mattress to every class and campus event that she attends. Her “performance art” is meant to symbolize a rape that allegedly occurred on such a mattress during sex with a male student she had consensual sex with on two previous occasions. She again agreed to have sex with him, but now says it turned into rape when he did something she did not agree to while they were engaged in sex. Several months after the encounter, she reported to Columbia University that the man raped her.

A Columbia University disciplinary hearing found the male student “not responsible.” The same result was determined after an appeal. But “Mattress Girl,” whose real name is Emma Sulkowicz, wants the male student expelled. So she carries a mattress at Columbia; she is often assisted by other students who support her mattress and her cause.

Along with 20 other men and women, Sulkowicz has filed a federal Title IX complaint against Columbia, “charging that it mishandled their individual gender-based misconduct or sexual assault cases.” (New York, 9-22-14) They claim that Columbia’s handling of sexual misconduct cases violates federal law.

Alcohol and the Hook-up Culture

Colleges should redouble efforts to educate students about alcohol and drug abuse and to prevent underage drinking.

The campus hook-up sex scene, whereby students have casual, uncommitted sex, is confusing for all concerned. It attempts to negate the emotional aspect of sex and is often further complicated by alcohol.

Manhattan Institute Scholar Heather Mac Donald writes:

But isn’t this bureaucratic and legislative ferment, however ham-handed, being driven by an epidemic of campus rape? There is no such epidemic. There is, however, a squalid hook-up scene, the result of jettisoning all normative checks on promiscuous behavior.

Mac Donald continues, “While there are thankfully few actual rape victims on college campuses, there are thousands of girls feeling taken advantage of by partners who walk away from casual sex with no apparent sense of thwarted attachment.” (Weekly Standard, 10-20-14)

The debased and immoral culture that for decades has been telling young people that sex without commitment will make them happy has gotten it badly wrong.

Making College Safe

Rape is a serious crime and any and all allegations of rape should be handled by real police, by real prosecutors, and in real courts. Campus tribunals can handle plagiarism and cheating; perpetrators of serious crimes like rape should not be let off with expulsion from their universities rather than the normal penalties of the crime. Nor should those accused of rape be punished with life-altering consequences based on the testimony of one other person, absent other evidence. Disputes about sexual crimes need to be handled properly and fairly, by professionals, according to established criminal law.

Heather Mac Donald says, “If someone were merely robbing females of their iPads at gunpoint around the campus library, that case, too, though far less serious than rape, would most certainly be prosecuted criminally.” (National Review, 5-8-14)

President Obama has put the presidency in the middle of this controversy. On January 22, 2014 he created a White House Task Force to Protect Students from Sexual Assault. In September, he launched a campaign to end sexual assault on college campuses, called the “It’s On Us” initiative. He claims that he wants to “help put an end to sexual assault on college campuses.” (, 9-19-14) But the policies promoted by the executive branch are doomed to fail; they are telling schools to deal with issues that are beyond their capacity. As schools around the nation are changing their guidelines and procedures for handling claims of sexual discrimination and sexual assault, it is imperative that they protect all students and that they adhere to the principles of innocent until proven guilty, evidence-based prosecution, and the rule of law. It should become uniform procedure that allegations of rape are brought to the attention of the jurisdiction’s police and prosecutors.

It should also be noted that activist lawyer Gloria Allred and others are filing civil cases against universities. New York magazine (9-22-14) reports that the University of Connecticut has given monetary awards to students who alleged they were harmed by that school’s mishandling of sexual misconduct cases. Students have received settlements that “ranged from $25,000 and $125,000, though one student received $900,000.”

Used with the permission of Eagle Forum.