Last summer, Yale University settled a lawsuit by former basketball captain Jack Montague, alleging that the university unfairly expelled him for sexual misconduct. Montague, the son of an electrical contractor and bookkeeper from Tennessee, was kicked out of Yale midway through his senior year after a female student told a Title IX investigator that, during the previous school year, she hadn’t fully consented to a fourth sexual encounter with the basketball star. Montague’s suit against Yale argued (among other things) that the college’s investigation was biased and conducted in bad faith.
In 2017, Amherst College settled a lawsuit by an Asian-American former student known only as “John Doe,” who also claimed he was unjustly expelled for sexual misconduct. A female student who willingly performed oral sex on Doe claimed, almost two years later, that she had withdrawn her consent midway through the act. Doe said he had blacked out during their rendezvous and argued that text messages from the female student to a third party about the encounter demonstrated that she was a willing participant.
Like Montague, Doe sued his former college arguing that the school’s investigatory tribunal was more interested in appearing tough on sexual misconduct than it was in ascertaining the truth.
Montague and Doe are not alone. According to a recent review by Samantha Harris, vice president at the Foundation for Individual Rights, and K.C. Johnson, a professor of American History at Brooklyn College, more than 340 students penalized for sexual misconduct by Orwellian campus tribunals have brought federal lawsuits against their schools. (Many more have sued in state court). Federal courts have issued more than 90 decisions favorable to accused students, and colleges have settled more than 70 additional cases prior to any decision.
The Harris and Johnson survey suggests that attempts to address sexual assault on campus, although well intentioned, have done so at the expense of fairness, and, in many cases, the truth. That may change when Secretary of Education Betsy DeVos issues final federal regulations governing the way schools investigate sexual harassment and assault.
Although for many years colleges showed little interest in combating campus sexual assault or providing resources for victims, over the past decade, the pendulum has swung in the opposite direction.
Today, many campuses define sexual misconduct broadly to include behavior that does not violate the law. Some define any sex under the influence of alcohol as non-consensual. Others require verbal consent to be obtained at each and every stage of coupling.
More disturbingly, many colleges employ investigatory procedures that are less fair to the accused than even the dreaded Star Chamber — procedures that eliminate the presumption of innocence and deny accused students any meaningful opportunity to tell their side of the story or question witnesses.
The new regulations that DeVos is expected to issue soon attempt to restore balance by formalizing the obligations of schools to address claims of sexual misconduct, but also requiring that schools investigate such claims fairly.
The rules are expected to allow the accused to submit “exculpatory” evidence — evidence that supports his or her version of events, such as witness testimony, text messages, or proof of continued sexual relations — and allow the accused to cross-examine adverse witnesses. To protect accusers, the regulations are also expected to contain a “rape shield” provision that prohibits inappropriate questioning about an accuser’s sexual past.
DeVos has made every effort to balance the rights of the accuser and the rights of the accused, while providing colleges and universities the tools to assess claims accurately and punish misconduct.
Nevertheless, activists are calling the new regulations “intimidating and stressful, even “trauma-inducing,” for survivors. Others are calling for “massive national student resistance,” and demanding that colleges and universities ignore them. Four Democratic congresswomen recently introduced legislation to block the regulations, and former vice president Joe Biden has promised that, if elected, he will repeal the DeVos regulations and reinstate older guidelines that encouraged schools to lower the burden of proof in cases of sexual misconduct.
Perhaps the federal Department of Education shouldn’t micromanagecollege disciplinary procedures at all. But policy makers like DeVos are right to remind schools that, although federal law prohibits schools from responding to claims of sexual misconduct in a discriminatory way, schools should take care to handle all claims fairly and with due process.
Jennifer C. Braceras is director of Independent Women’s Law Center.