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Law Review: Campus sex-assault tribunals may soon change

The tone at the outset seemed friendly enough, but the underlying message was unmistakably coercive.

In April 2011, the federal Department of Education wrote to colleges and universities to tell them they would be held to account if they failed to crack down on sexual assaults.

So far, so good. But in what has become known as the "Dear Colleague" letter, the department's Office of Civil Rights set new standards for adjudicating sexual-assault cases that stripped many traditional legal protections from the accused. Universities that failed to move aggressively faced the loss of federal money and the public shaming ritual of being placed on a list of institutions under investigation by the department.

Bring us the heads of the accused, the letter all but said.

The shift in focus triggered a flourishing litigation sideline for lawyers who defend students caught up in the campus investigative machinery authorized under the Title IX prohibition against gender discrimination on campus. It also drew pushback from civil libertarians and, notably, elite legal educators, including nearly a third of the faculty at the University of Pennsylvania Law School, who wrote in an open letter that the guidelines stripped key protections from the accused and were of questionable legal basis. Harvard law faculty members had written a similar letter.

Now, it seems as if a pullback by the Office of Civil Rights is in the offing. Late last month, President Trump signed an executive order calling for a review of Obama-era rules at the agency. Most close observers of the debate over the Obama administration's campus sexual-assault guidelines believe the rules will come under scrutiny and likely will be changed.

"It's the elephant in the room," said Justin Dillon, a Washington-based lawyer who has represented dozens of young men he said were unfairly caught up in campus sexual-assault investigations.

Dillon was engaged by the Foundation for Individual Rights in Education (FIRE), a Philadelphia-based libertarian group, to sue the Education Department in U.S. District Court in Washington to overturn its guidance.

FIRE — which lobbies nationally against campus speech codes, limits to religious expression on campus, and panels for adjudicating sexual-assault allegations that it says breach the rights of the accused — is careful to point out that universities must be stalwart in preventing campus sexual assault.

But not at the expense of the due-process rights of the accused, it adds.

"Just as it is important for colleges and universities to be safe for students and that allegations of sexual assault not be swept under the rug, it is equally critical that we don't expel students when there isn't good evidence they are actually a perpetrator," said Joe Cohn, FIRE's legislative and policy director and a Penn Law grad.

In its guidelines, the OCR required colleges and universities to adopt the "preponderance of evidence" standard in deciding sexual-assault allegations, the lowest threshold under the law. That means simply that panels adjudicating campus assault cases need only conclude that there was more than a 50 percent chance that the accuser was telling the truth to find that the accused had committed a sexual infraction.

Though that standard is used every day in civil litigation, parties to disputes in the civil justice system have far more protection than the accused in a campus sexual-assault investigation. Lawyers can depose witnesses, cross-examine them during a trial, subpoena witnesses, and examine email communications and internal files, in an effort to defend their clients.

Only a handful of universities permit lawyers for accused students to make statements on their behalf. That means, as a practical matter, there is no direct examination of accusers by counsel for the accused. While some investigative panels pose questions furnished by the accused, Dillon said the process typically is botched, with questions being dropped or read out of sequence.

And that points to a larger problem. The university panels and individuals charged with investigating allegations of sexual assault are far from disinterested parties. They face the loss of millions in federal funds and reputational damage if the Education Department finds they are not adhering to its guidelines and launches an investigation. In murky and complicated cases, the incentives are stacked in favor of a finding of sexual misconduct.

No judge or jury in a civil or criminal trial would survive a motion for recusal with conflicts like that.