For years, college campuses across the country have been conducting witch hunts to expel or punish men accused of sexual assault. Those may soon be coming to an end, thanks to the Trump administration.
Colleges and universities have conducted these witch hunts at the order of the U.S. Education Department’s Office for Civil Rights, which during the Obama administration issued a “Dear Colleague” letter and additional guidance that all but assured students accused of sexual assault would not get a fair hearing.
These campus star chambers, conducted behind closed doors and hidden by federal privacy laws, have resulted in an unknown number of expulsions. More than 100 of these punished students have sued or are now suing their universities for violating their due process rights and discriminating against them because of their sex.
At a National Association of College and University Attorneys conference in Chicago this week, acting assistant secretary of OCR, Candice Jackson, said the Trump administration would take a less confrontational approach to the way the department handles accusations that schools do not properly address sexual assault complaints.
“OCR has fallen into a pattern and practice of overreaching, of setting out to punish and embarrass institutions rather than appreciate their good faith and genuine desire to correct legitimate civil rights problems,” Jackson told the crowd.
Jackson said, according to Inside Higher Ed, that the Obama administration had been playing “gotcha” with schools, treating “every complaint as a fishing expedition through which our field investigators have been told to keep searching until you find a violation rather than go where the evidence takes them.”
In addition, the Obama administration’s OCR published lists of schools under investigation, which, to the best of my knowledge, no other agency does to such an extent. The lists did not include any details of the accusations, serving only to bully and embarrass schools into submission.
We’ll Stop Rewriting Laws at Whim
Jackson said at the conference that the Trump administration’s OCR is “committed to discontinuing the legally dubious practice of issuing subregulatory guidance that is then treated through enforcement as binding mandates,” and said the 2011 “Dear Colleague” letter could be considered for reversal. Jackson said OCR may now go back and follow proper procedure to do “what should have been done the first time around.”
Back in 2011, when the Obama administration issued its infamous “Dear Colleague” letter, OCR didn’t follow proper procedure in crafting the document. Because it contained new regulations, it was supposed to go through a notice-and-comment period, which it did not. Therefore, critics such as Sen. James Lankford have argued, the document should have never been enforced.
Jackson would not, however, commit to removing the low standard of proof the Obama administration had required. The preponderance of evidence standard was forced onto schools for dubious reasons: the Obama administration claimed OCR was justified in using this standard because many schools already used it, even though that is not a legal justification. The standard means schools just have to be 50.01 percent sure an accuser is telling the truth.
Given the intense pressure from the media, activist groups and the Obama administration—all of which claim we must always “believe” accusers—getting to 50.01 percent often took no more than an unsubstantiated accusation. Even when a student was able to provide evidence eviscerating the accusation, it was ignored for fear the school would be investigated or receive bad publicity. Jackson did say the requirement for schools to use the preponderance or another standard was “actively under consideration.”
One attendee, attorney Scott Roberts, told Inside Higher Ed he liked what Jackson said: “I appreciated her perspective that OCR will act as a neutral, impartial investigator, not as a prosecutor of presumed wrongdoing,” he said.
This has been the previous administration’s problem. Every time OCR concluded an investigation into a school, it found a Title IX violation. Sometimes those violations conflicted with other violations or with what activists claimed to want. It appeared as though OCR was determined to find a violation no matter what.
Due Process Complaints Have Stacked Up for Years
Jackson’s comments follow numerous other organizations’ attempts to fix the problems in campus trials. The American Bar Association recently released a final report addressing the due process needs of accused students. The National Center for Higher Education Risk Management, which has thus far made millions selling a model to schools to railroad the accused, issued a white paper earlier this year suddenly calling for robust due process protections.
For years, colleges and universities have gotten away with discriminating against men by hiding behind Obama-era guidance documents. They, along with the federal government, say that sex assault falls under the anti-sex discrimination statute Title IX because women are the primary victims and have a right to education free from harassment. This should mean that false accusations are a form of discrimination since men are the primary victim, meaning schools should take a fair and equitable approach to investigating claims.
But the culture has been so muddied with activism that school administrators are actually taught to ignore the possibility of a false accusation because those are allegedly rare (although data on them is often misrepresented). Essentially, colleges have treated every accusation as the truth, and conducted sham investigations where accused students are forced to prove their innocence and to prove the assault didn’t happen. Proving a negative is notoriously difficult, leading to possibly hundreds of young men having their lives unfairly ruined by colleges willing to throw their lives away to avoid a federal investigation and bad press.
It now appears the Trump administration will attempt to end this injustice. Granted, even if Obama-era overreach is overturned, it will take years, maybe even decades, for the damage to be undone. In January, a panel of college presidents said they would uphold the Obama-era guidance even if Trump’s OCR overturned it. States such as California, Mississippi, and others are working on bills to codify into law Obama’s harmful policies. It will take a while before society remembers that due process is a constitutional right and necessary to seeking justice, rather than an impediment.