Warning: This article quotes a graphic description of sexual assault.
Last month, a jury awarded former Boston College student John Doe $100,000 for how the college mishandled sexual assault allegations against him. The case, Doe v. Trustees of Boston College, is the first of its kind to reach a jury since 2011, when Obama-era rules began to govern campus sexual misconduct claims. It joins a long line of other such cases claiming that Title IX offices are breaking the law.
Title IX is the federal law banning sex discrimination at schools receiving federal funds. Since 2011, when the Obama Education Department issued a “Dear Colleague” letter declaring sexual violence a form of sex discrimination, colleges and universities have expanded their Title IX offices to process sexual misconduct complaints as potential discriminatory acts. Title IX “coordinators,” “investigators,” and “adjudicators” now act as police, jury, and judge for such accusations, which often result in suspension, expulsion, or summary ejection off campus for the accused.
Title IX officials rarely have formal legal training, however, and frequently abridge basic principles of justice, including those informing due process. Those principles include the accused’s presumption of innocence, the right of all parties to call and cross-examine witnesses, and — particularly relevant for this case — the right of all parties to see evidence, especially evidence that exonerates the accused or points to another suspect. In the case of John Doe at Boston College, the college not only ignored the obvious other suspect, but seemed not to care if it had the wrong guy.
What Happened in the John Doe Case?
Doe was a senior in 2012 when he went on a student-sponsored cruise for the school newspaper. With more than 600 passengers on board, the cruise dance floor was crowded. According to court papers, as Doe made his way across the floor, a female student, “AB,” started screaming at him. Doe’s acquaintance, “JK,” who had been walking in front of him, turned to him to say, “Sorry dude, that was my bad.”
Within minutes, the ship’s security guards detained Doe, placing plastic bags on his hands to preserve evidence and keeping him in custody overnight. The following morning, he was charged with indecent assault and battery; AB had reported that someone had digitally penetrated her anus. When Doe later phoned JK about what had happened, JK responded, “What a b-tch! What kind of girl goes to a dance floor like that and doesn’t expect to get touched or grabbed?” according to the recording of the call.
None of the evidence pointed to Doe. Footage of the event showed Doe several feet from AB. Forensic testing showed none of her DNA on Doe’s hands. So the district attorney dropped all charges. Boston College, however, proceeded to investigate on its own under Title IX and held a hearing within a month, where the adjudicating panel was told to put JK “at ease” when he testified, establishing that JK was only a witness and not a suspect. It then found Doe responsible and suspended him for more than a year, postponing his graduation until 2014.
In court, Doe claimed the school ignored his claim that JK was the real offender. And the jury agreed, awarding Doe lost income for one year and a semester’s tuition.
Boston College Ignored Evidence and Due Process
Three aspects of Boston College’s malfeasance stand out. First, the college failed to observe basic due process, in particular by neglecting to take seriously exonerating evidence. Title IX offices operate with judicial-like power, but with none of the corresponding restraints. In real courts, the obligation to disclose exculpatory evidence is called the Brady rule, after the 1963 case Brady v. Maryland. Prosecutors who ignore this requirement are subject to sanction or are even liable for malicious prosecution, a serious cause of action against officials who abuse the criminal process.
Boston College presents an aspect of malicious prosecution likely to recur. Without redress from the courts, as John Doe sought, colleges can continue to ignore exculpatory evidence. In the criminal justice system, defense attorneys can request that courts reprimand prosecutors for Brady rule violations, but in the case of college Title IX offices, no such sanctions exist. No one is policing the campus Title IX police.
Second, the porous Title IX processes at Boston College and around the country fail to protect against malicious or false accusations. While all complaints should be heard and processed properly, false accusations do exist, as evidenced by the 2006 Duke lacrosse case, where a false rape accusation devastated the lives of three students for years. Colleges and universities should therefore have policies to provide for this possibility — either to prevent or sanction it, or both.
New Title IX regulations from the Department of Education can address these first two problems. Education Secretary Betsy DeVos has already, in 2017, rescinded the 2011 “Dear Colleague” guidance. Shortly thereafter, she proposed new regulations. Unlike the 2011 letter, the DeVos proposals have been subject to public comments. They should address the possibility of malicious investigation and false accusations, including deliberate indifference by Title IX officials to exculpatory evidence, as seen in Doe’s case.
Title IX Has Become a Moral Problem
The most significant aspect of Boston College’s behavior is not legal but moral, and this will take more than bureaucratic measures to solve. Boston College appeared to have complete disregard, perhaps malicious disregard, for the wrongful treatment of one of its own innocent students.
Wrongful accusations, wrongful convictions, and wrongful incarcerations are among the most monstrous indictments of any legal system, since they represent the full power of the state used — abused — against an individual, who is by definition a weaker party. When deliberate abuse of power against the weak happens, it should be universally condemned and duly punished.
What’s more, those involved in adjudications, in court or elsewhere, must understand that the adversarial nature of the legal process exists to arrive at the truth. It should never be a power game where the prideful or the ideological aim is simply to win, much less to win at all costs. Yet the growing number of wrongly accused students going to court indicates Title IX has become just that.
In this case, Boston College appeared simply not to care about the truth. Perhaps this is the logical outcome of the moral relativism and multiculturalism rampant on campus today. If no objective moral truth exists, then innocence and guilt don’t either. How can they be true when truth itself is supposedly relative?
Without a recognized, objective moral order, a justice system itself makes little sense, other than as a show where the powerful pretend to follow rules while railroading the little guy. Is that what Title IX has become? Ask John Doe.