Five years ago, the Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter to college and university presidents on the enforcement of Title IX, which prohibits sex discrimination in education. The letter was about sexual harassment and sexual violence on campus.
The April 4, 2011, document, 19 pages long, has had a major impact on institutions of higher education. While the problems addressed by the letter are real, the impact has been largely negative and sometimes disastrous, creating a climate in which accusations lead to a presumption of guilt and minor transgressions are routinely blown out of proportion. Now, a group that advocates for individual rights in education is seeking to mount a legal challenge to the letter’s mandates. It is a welcome step.
The most significant, and most controversial, recommendation in the OCR letter is that disciplinary cases stemming from sexual assault complaints should be reviewed under the standard of “preponderance of the evidence.” This means the accused must be found responsible for misconduct if it is deemed even more probable than not that he or she committed the offense. Until then, universities had typically used the higher standard of “clear and convincing evidence.”
This shift was coupled with the rise of ideologically skewed training for college bureaucrats and campus “juries” stressing that the vast majority of sexual assault accusations are true and with draconian definitions of “nonconsensual” sexual behavior. In the past several years, schools have rushed to adopt “affirmative consent” standards (imposed on all colleges and universities in New York last year) under which the accused must somehow prove that the other party demonstrated consent to a specific act, rather than rely on implied consent in the normal give and take of sexual encounters. Intoxication is now widely assumed to negate consent, even for complainants who were in sufficient possession of their faculties to walk unassisted and send text messages.
One result of this policy change has been a rash of lawsuits — more than 100 — by male students who claim they were wrongfully expelled or suspended based on false or frivolous complaints of sexual misconduct. Ironically, many of the plaintiffs are suing under Title IX, claiming that they were victims of sex discrimination because of their gender. It’s an uphill battle, because this is an unorthodox interpretation of Title IX that few judges have been willing to recognize. Many of the lawsuits have been dismissed, others settled. However, a few are going forward.
Just last week, a federal judge in Massachusetts refused a request to quash such a lawsuit against Brandeis University. The details of the case illustrate how absurd the campus crusade against sexual misconduct has become. The plaintiff, known as John Doe, was accused of sexual assault by his former boyfriend several months after a breakup. “Doe” was found to have committed nonconsensual acts because, when the two were in a relationship, he sometimes woke up his boyfriend with a kiss and once touched him sexually without asking while the two were watching a movie. While “Doe” was not expelled but given a disciplinary warning and required to undergo education on sexual assault, he alleges that the findings were leaked and cost him an internship and job offers.
This is not protection from sexual violence but bizarre authoritarian regulation of relationships. The Foundation for Individual Rights in Education, a nonpartisan group that has opposed Title IX overreach, is now seeking a plaintiff to challenge the rules imposed by the OCR letter. In the current atmosphere, it should have no trouble finding a test case.
Cathy Young is a regular contributor to Reason magazine and Real Clear Politics.