Fearing funding loss, colleges' rush to judgment in sex assault cases can ruin young men's lives | Opinion
While Joe Biden's campaign to end sexual assault is commendable, Education Secretary Betsy DeVos' efforts to protect accused students are much needed, guest columnist attorney Andrew Miltenberg writes.(NJ Advance and AP file photos)
By Jersey Journal Guest Columnist
By Andrew Miltenberg
Recently, former Vice President Joe Biden spoke at Rutgers University as part of the "It's On Us" campaign to prevent sexual violence on campus. In addressing more than 2,000 students on the New Brunswick campus, Biden criticized the Trump Administration and U.S. Secretary of Education Betsy DeVos for revisiting Title IX policies for sexual assault investigations on campus.
While Joe Biden's campaign to end sexual assault is commendable, it's also important to recognize the deeply flawed Title IX policies for sexual misconduct investigations on college campuses. Unfortunately, the Obama administration's policies on campus sexual assault have created an inequitable process for sexual misconduct investigations -- as well as an inherent male gender bias -- at colleges and universities throughout the country.
One sexual assault is too many, and so is one wrongfully expelled male student.
Having represented more than 100 male students on college campuses across the country, in both blue states and red states, I have seen firsthand how wrongfully accused male students are being unfairly punished, with no opportunity to defend themselves.
In 2011, the Obama administration issued a policy directive known as the "Dear Colleague" letter to every college and university receiving federal funding, addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. While the Obama administration was right to insist that more serious attention be paid to the issue, the department's directives in the "Dear Colleague" letter have drastically overreached with disastrous consequences for accused male students who have been denied their basic right to due process.
Unfortunately, the "Dear Colleague" letter tramples on the civil and due process rights of accused students. These Title IX policy directives -- which have come under fire by constitutional law scholars, college professors, and elected officials alike -- aggressively dictate how colleges and universities handle sexual assault and sexual harassment on campus by laying out specific requirements that schools must adopt and utilize. These "guilty until proven innocent" directives have caused schools to brand more male students rapists based on the excessively low "preponderance of the evidence" standard -- as opposed to the "clear and convincing evidence" standard traditionally used in college disciplinary hearings.
Indeed, the Obama administration's "Dear Colleague" letter has resulted in sweeping regulatory changes, resulting in colleges and universities setting up their own campus rape tribunals to adjudicate cases of sexual assault. Unsurprisingly, there has been a surge in colleges mishandling these investigations and wrongfully prosecuting male students for fear of losing federal funding. Because of these directives and the clear disregard for the due process rights of male college students, hundreds of young men are facing life-changing consequences for allegations that have not been proven and crimes that have not been committed.
Make no mistake, these policies are ruining the lives of the wrongfully accused.
Recognizing the need to restore due process rights on college campuses, Secretary DeVos and the U.S. Department of Education announced major improvements to a broken system, including providing reasonable interim measures, eliminating double jeopardy, and requiring the consideration of exculpatory evidence. Unfortunately, her announcement was met with divisive political rhetoric and on-going protests.
Given this highly charged political environment, it appears not all college and university administrators will be quick to adapt these new interim rules. Now more than ever, due to ever-changing interpretations of what the Department of Education requires, and moreover what each educational institution further requires by their individual policies and procedures, accused students are going to need experienced guidance to respond to allegations that can result in life-altering outcomes.
Ensuring civil liberties on campus does not mean being permissive of acts of sexual violence. No matter what our politics may be, we should all agree that Title IX policies need to ensure that all students -- both male and female -- have the right to due process and a fair and impartial investigation.
Andrew Miltenberg is a New Jersey attorney who specializes in campus assault due process. He is currently engaged in several Title IX cases at Brown, Colgate and Penn State universities.
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