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As other articles on this website demonstrate, male students have been placed at a disadvantage in recent years when they are accused of committing misconduct involving female students. Nobody thinks that men should be allowed to abuse women, but too many college administrators seem to think that Title IX requires them to bend over backwards to support all accusations of sexual misconduct made by female students while erecting roadblocks to a male student’s right to defend against those accusations. 

That attitude became prominent after the Department of Education provided a guidance to schools in 2011 that was widely perceived as threatening federal funding to schools that treated male students fairly. Instead of treating the accuser and the accused equally, without prejudging the accusation, the guidance encouraged schools to strip students accused of sexual misconduct of their fundamental rights, including the right to see the evidence, to cross-examine the accuser, and to base disciplinary decisions on clear and convincing evidence. 

The Department of Education’s guidance seemed to presume that female accusers are always truthful while male students who deny accusations pose a threat to the educational environment. The Department elevated accusations over evidence while adopting the sexist assumption that female students are so tender that they must be shielded from the accused student’s opportunity to expose false accusations by questioning their stories. 

The Department eventually rescinded that guidance after lawyers, civil libertarians, and law professors objected to its unbalanced favoritism of female accusers over male students who faced expulsion or other discipline on the strength of unsupported accusations. New rules have been proposed that strike a better balance by treating both sides impartially while respecting the presumption of innocence and the right of the accused to a fair hearing. 

Discrimination Against Men on Campus 

Why did the Department of Education instruct colleges and universities to adopt rules that were unfair to accused male students? Glenn Harlan Reynolds, a law professor at the University of Tennessee, suggests an answer. In Professor Reynolds’ view, institutions of higher learning engage in broad discrimination against male students. 

Professor Reynolds points out that colleges and universities are becoming gender unbalanced. While states continue to enact laws designed to give women greater opportunities to be represented in corporate boardrooms and upper management positions in the workplace, equal representation in the student body was achieved many years ago. In fact, students today are more likely to be female than male. 

Professor Reynolds cites evidence that K-12 teachers encourage girls to pursue a higher education, leaving boys with the belief that their post-high school education is unimportant. He also suggests that colleges have become “an anti-male space” that supports the future of women after they graduate while condemning males in negative terms, leaving the impression that males are “toxic.” 

Gender discrimination is wrong, regardless of the gender that is victimized by it. Professor Reynolds documents favoritism of women with regard to scholarships, housing and campus resources. However, discrimination is particularly insidious when it may prevent a student from completing an education. 

As Professor Reynolds points out, colleges and universities regard accusations of sexual misconduct against male conduct as presumptively true. “The accuser is given all sorts of help and deference,” the professor writes, while “the accused is treated as a criminal from day one, and often not allowed to call witnesses, cross examine his accuser, or otherwise enjoy the sort of due process that, say, a university administrator would demand if accused of a crime. 

Lawsuits challenging favoritism of female students and the Department of Education’s recent recognition that students do not lose their right to due process simply because they are male might eventually persuade schools to treat both genders equally. That change is necessary to assure that students are not expelled based on accusations of sexual misconduct that are never tested and proven in a fair process.  

False Accusations Against Male Students 

It may be that campuses strive so hard to make female students feel safe and empowered that they send the wrong message. A female student who has a grudge against a male student may come to understand that she has the power to get the male kicked off campus (and ruin his life) simply by accusing him of sexual misconduct. When students come to believe that accusations against men will be accepted at face value, a vindictive student may be unable to resist the temptation to make a false charge of sexual misconduct. 

Professor Reynolds points to the example of Saifullah Khan, a Yale student was accused of rape. Yale suspended him but placed expulsion proceedings on hold until criminal charges were resolved. A jury found Khan “not guilty” on all counts. Inconsistencies in the accuser’s story and her attempt on cross-examination to minimize text messages she sent to Khan made the jury doubt her veracity. 

Khan’s disciplinary hearing occurred after his acquittal. His accuser was not required to attend in person; she told her story via Skype. Khan’s cross-examination of his accuser was limited. The decision-making panel found by a “preponderance of the evidence” that the accusation was probably true. The decision-makers may have been pressured by a campus climate that views men as presumptively guilty of sex crimes and by a petition signed by thousands of students who, despite Khan’s acquittal, insisted he was a rapist who should not be allowed to resume his education. 

Unfortunately, schools tend to be skeptical of evidence presented by the accused while accepting doubtful stories told by accusers. For example, an accuser at a California university who willingly had sexual intercourse with her boyfriend many times over the course of their sexual relationship decided, after they broke up, that she had not consented to their first sexual encounter. The school expelled the male student despite evidence of text messages in which his accuser described him as kind and loving.  

Families Advocating for Campus Equality (FACE), an organization founded by the mothers of students who were disciplined after being falsely accused of sexual misconduct, is one of the primary organizations fighting to achieve equal rights for male students who face disciplinary proceedings. Criminal defense lawyers who defend students in campus disciplinary hearings also play their part in persuading schools that guilt cannot be assumed simply because an accused student is male. 

As the U.S. Department of Education (DOE) notes in a footnote to its proposed new regulations for how schools handle Title IX complaints of sexual discrimination, including harassment or misconduct, more than 90 colleges have lost due-process challenges brought by students challenging school disciplinary actions. That means higher educators lose about half of the time when a court reviews how they handle Title IX complaints.

Not only have some basic positions staked out by what DOE artfully but ambiguously describes as “guidance” — a very low evidentiary standard, procedures giving short shrift to the presumption of innocence and other rights of those accused, and much more — drawn substantial criticism from legal scholars and civil libertarians, but DOE’s new proposal says it also found schools uncertain whether the agency’s guidance was legally binding (in its communications, DOE finessed that crucial question, but did manage to speak menacingly of cutting off federal funds to schools which failed to comply with Title IX requirements, whatever those might be).

I have previously discussed several college and university Title IX actions or failures to act, which courts rebuffed. These included a federal appeals court’s ruling that the University of Michigan violated due-process rights when it refused to allow an accused to cross-examine the accuser or other witnesses in any way in a case which turned on witness credibility,

Or take the case of Keith Humphrey, an NFL receiver who played football at Michigan State. While in college, another student complained he sexually assaulted her in her dorm room. Humphrey cooperated with local police, who declined to prosecute. Although he was not permitted to pose any question to the accused, who also refused to answer questions from the college’s investigator, the college’s Title IX panel cleared him.

But, unlike in criminal cases, where the U.S. Constitution prevents double jeopardy, under Title IX, an accuser is permitted to appeal a decision clearing the accused, which Humphrey’s accuser did. But because this time, the school sent an email notice to an old address the accused no longer used, he didn’t receive notice of the appeal hearing, much less have an opportunity to participate in it. This time, the school’s disciplinary panel changed its mind, and held Humphrey responsible.

So, because the college reversed itself at a hearing the accused was not even aware of, he was expelled from Michigan State’s graduate school (he was attending during the NFL off-season), and the Houston Texans decided it couldn’t keep him on the team with that on his record. Not surprisingly, no other team has offered him a slot on their roster, either.

It’s still too early to predict the outcome of DOE’s ongoing rulemaking proceeding, but it’s not difficult to see how higher educators — seeing their continued federal funding potentially threatened if they didn’t go along — had for years yielded to adopting standards that official enthusiasts pressed on them, whether or not that “guidance” clashed with basic constitutional rights. The previous, now-rescinded guidance was adopted without opportunity for public comment; this time let’s hope that the previously disregarded values get full consideration.

A Baylor University administrator is being accused by anonymous critics of having insinuated himself into campus groups protesting the school’s handling of sexual assault claims, then using his position to pass on to school officials and others information on the groups’ protests and other plans.

The charges first surfaced in the publication PRWeek in its coverage of the long-running controversy over a Title IX lawsuit claiming numerous sexual assaults by members of the Baylor football team and the school administration’s response. The dispute has cost the jobs not only of the football head coach and athletic director, but also of the chancellor, former special counsel during Bill Clinton’s impeachment investigation, Kenneth W. Starr.

Specifically, critics allege Baylor’s director of student activities Dr. Matt Burchett worked closely with campus groups advocating for survivors of sexual violence, helping plan events, such as vigils and demonstrations, to publicize the issue, even advising on the wording of the groups’ public statements. Email correspondence showed Burchett frequently kept other university officials and a public relations firm retained to advise on “reputation management” apprised of what he had learned about the groups and their plans while working with them.

A spokesperson at the private Baptist-founded university in Waco, Texas denied Burchett acted inappropriately, maintaining his job required him to stay in close touch with campus groups and to facilitate their “expressive activities.” Campus groups were under no obligation to accept any advice Burchett offered, a school spokesperson added.

Baylor is facing a Title IX lawsuit filed by 10 unnamed students, who claim the school failed to adequately respond to their complaints of having been sexually assaulted. The incidents complained of date back as far as 2004; the most recent occurred in 2016.

Word of Burchett’s possible double role — befriending and advising campus activists while also sharing what he learned with campus officials — appeared in the public relations publication after Burchett gave a deposition (which has not yet been publicly released) in the Title IX lawsuit. School representatives say they do not believe students were responsible for the leak.

Counsel for the Title IX lawsuit’s plaintiffs says the university’s public relation strategy has been to portray its Title IX problems as solely related to its football team, and not to broader failures on the part of its administration.

Members of the school’s football team have figured in several scandals. In 2015, a former defensive end was convicted of sexually assaulting a member of Baylor women’s soccer team, and sentenced to six months in a county jail. In 2014, another defensive end drew 20-year sentences on each of two convictions for sexual assaults of Baylor students. A third defensive team player is scheduled to face trial this December on a rape charge based on a 2016 incident.

This July, the school settled, for an unannounced payment, a Title IX lawsuit brought in 2015 by a former member of its women’s volleyball team that she had been gang-raped by football team members in 2012, during a party at an off-campus apartment. During the lawsuit, it emerged team officials received reports on the incident, no one at the university reported it to the school’s judicial affairs office or to police.

Earlier this year, a federal magistrate judge in Harrisonburg, Virginia issued a decision recommending that state college James Madison University (JMU) pay almost $850,000 in attorneys’ fees and court costs to the pseudonymous “John Doe,” a student whom the school wrongly punished for an assault which a Title IX tribunal a year earlier had declined to find him responsible. If approved by the judge presiding over Doe’s lawsuit against the university, it would be the largest known award in such a case.

A Title IX charge had been brought against Doe by another JMU student, “Jane Roe.” In August 2014, Roe filed a complaint under Title IX, which obligates schools receiving federal funding to investigate and take appropriate enforcement action against sexual harassment or sexual misconduct against students or staff. Her complaint alleged that Doe, who lived in the same dorm, several months earlier had intercourse with her when she was intoxicated. But after a campus tribunal hearing saw evidence casting doubt on Roe’s intoxication claim, Doe that December was found not responsible for sexual assault.

In a criminal court proceeding, the Fifth Amendment of the Constitution forbids double jeopardy. But as interpreted by the Obama Department of Education (DOE), Title IX allows an accuser to appeal a decision for the defendant. The appeal, heard by a board of three university professors, adopted many other much-criticized aspects of DOE’s procedures: the board forbade Doe to appear or examine witnesses, kept him from seeing some of the evidence, and did not itself examine witnesses about disputed evidence.

Even so, the board reversed the earlier verdict and imposed what it called a “new sanction,” handing Doe a five-year suspension, without explaining how it came to that decision, or finding Doe responsible for the alleged sexual misconduct. A senior JMU official affirmed the board’s reversal, without advance notice to Doe or any opportunity for him to offer input or explanation. Under the new sanction, after the five-year suspension, Doe would be permitted to apply for re-admission, if he completed an education and counseling program. Perhaps coincidentally, a change in JMU’s records retention policy caused the shredding of all records in Doe’s entire file, including the original hearing and the reversal on appeal.

With the help of a local law firm and the Center for Individual Rights, a Washington, D.C.-based non-profit group, in 2015 Doe brought a lawsuit (John Doe v. Alger) in federal court over the university’s handling of his case. Late the next year, the presiding judge ruled for Doe, finding JMU had violated Doe’s due-process rights, through allowing the double-jeopardy violation and otherwise, and ordered the school to expunge his record and reinstate him in the school.

Since Doe prevailed in the court case, he was eligible to have his attorneys’ fees and court costs reimbursed, but – as it had at nearly every point in the federal trial – JMU resisted. Finally, after about a year of hearings, magistrate judge Joel Hoppe determined JMU should pay Doe $849,231. His 46-page report notes at several points JMU made objections but failed to offer proof for them.

Unsurprisingly, the university has signaled it will likely object to the magistrate’s ruling. The judge presiding over Doe’s case should soon decide whether to accept the magistrate’s recommendation.

On Wall Street, at the Oscars or Grammy awards, even on Capitol Hill or at the White House, sexual harassment and sexual assault seem nearly omnipresent subjects. As a criminal defense lawyer, I’ve seen many cases – both in the settings of a criminal or juvenile court, and even more often in non-judicial settings such as school discipline or college Title IX hearings (which, can have serious repercussions for those accused, even as some of the procedural safeguards that would be a matter of course in a criminal court are often lacking, as I’ve described in a number of my earlier posts).

I’ve long admired the perceptive, skilled writing of Emily Yoffe, who for years wrote Slate’s “Dear Prudence” advice column, among many other things. Last year, she authored three lengthy analysis pieces for the Atlantic exploring several important controversies in how publicly-supported schools and colleges are interpreting and enforcing Title IX, which requires them to investigate and, where appropriate, take enforcement action against sexual misconduct affecting students or staff.

Much of what she’s covered have been the increasingly well-known problems in Title IX requirements imposed on schools under a 2011 directive issued by the Office of Civil Rights in Obama’s Department of Education, currently frozen while the new administration works on a replacement. But far less known is the subject discussed in an article Ms. Yoffe published last September 8: how federal enforcers and activists have tried to impose as orthodoxy a view on neurological and psychological responses to sexual assault that has virtually no scientific support.

Promoted in some federally-developed materials and embedded in Title IX training materials used on many campuses, this theory in essence claims the trauma of unwanted sexual conduct nearly always renders a victim “frozen,” powerless to resist, or even accurately remember what happened.

So, if there’s no sign of struggle, or reports are incoherent or inconsistent, far from giving rise to doubts about the claim, this view takes those flaws as confirmation, at least for campus officials making often-unskilled investigations. As a female Harvard Law professor observes, the theory is “100% aimed to convince” investigators to “believe complainants, precisely when they seem unreliable and incoherent.”

Yet the reflexively pro-accuser expectation that victims will be virtually catatonic has serious problems. There’s little solid evidence for it; what mind and memory researchers have learned from studying other high-stress traumatic events – such as terror attacks – is at odds with those claims. Few of the survivors of the Parkland, Florida mass shooting, for example, appear as clueless as the “frozen” theory would have us believe.

Ms. Yoffe also questions not just the accuracy, but also the wisdom, of promoting to young people the message that biological programming renders them helpless if confronted with unwanted sexual conduct, which will also certainly impair their mental abilities thereafter.

There’s another danger in schools automatically crediting whatever they hear in accusations, or deciding not to worry if accounts seem implausible. It’s important to deter and punish unwelcome sexual conduct, but if the only way to do that is to pre-judge every report without requiring some level of provable truth, such intrinsic unfairness may eventually cause fair-minded persons to withdraw from that effort.

According to a new report by the American College of Trial Lawyers (ACTL), university students accused in campus hearings of sexual misconduct are “deprived of their fundamental fairness,” and procedures set by colleges and universities in response to a legal mandate enforced by the federal Department of Education’s Office of Civil Rights (OCR) are in need of serious improvement.

An invitation-only organization of distinguished trial advocates, ACTL assembled a five-member task force of prominent litigators to assess how well or poorly universities and colleges are responding to allegations of sexual violence. A mandate in a 1972 federal education gender-based bias law, known as Title IX, requires higher-education institutions to investigate and, when warranted, hold hearings in response to complaints of sexual harassment or violence by students or employees.

Especially during the Obama administration, OCR has issued regulations and interpretive guideline expanding how it believes schools should handle Title IX investigations. Institutions judged to be out of compliance with the mandate can be fined by OCR and risk having all their federal funds cut off, including federal-guaranteed scholarships. The ACTL report says the government’s significant enforcement powers can put academic administrators in a bind that amounts to a conflict of interest, in which they run the risk of serious financial penalties for providing better protection of student rights.

The ACTL report also notes some schools have adopted procedures for investigations and hearings that have drawn protest from faculty at affiliated law schools. At Harvard, more than two dozen law school teachers protested the university’s procedures for Title IX cases as lacking the “most basic elements of fairness and due process” and being “overwhelmingly stacked against the accused.”

Styled as a task force’s “white paper” on campus sexual assault investigations, the ACTL report notes state and federal courts are receiving growing numbers of lawsuits filed by students accused or investigated in Title IX proceedings, and some decisions question whether colleges and universities are providing adequate protection of individual constitutional rights.  The white paper’s authors maintain OCR’s regulations for colleges have acted to impose on U.S. higher education an “investigative and adjudicative system that does not ensure basic fairness for accused students.”

The white paper argues, to ensure basic fairness, students facing Title IX investigations or hearings should receive these seven elements: a process careful to maintain an appearance of impartiality, detailed information on charges and the right to counsel, the right to be accompanied and advised by counsel at all stages, timely access to evidence, some form of cross-examination of witnesses, written findings of fact of an investigation or hearing is over detailed enough to allow appellate review, and a “clear and convincing” standard of proof.

The last item, the standard of proof, is a much-criticized part of the OCR’s regulations. OCR currently requires colleges and universities to use the far lower “preponderance of the evidence” standard, essentially meaning all that is needed for the accused student to be held responsible is for the complainant to have any edge in credibility, no matter how slight — significantly short of what would be needed for a finding of “clear and convincing” evidence, and even further below the standard for criminal cases, a presumption of innocence and evidence beyond a reasonable doubt.

 

Secretary of Education Betsy DeVos made it official on September 7: her agency plans to change guidelines the Obama administration had set in 2011 for how schools should investigate and handle complaints of sexual misconduct.

In a speech delivered at George Mason University, the head of the U.S. Department of Education (DOE) said the Obama administration’s approach “wasn’t working” and had “failed too many students.” She also committed the agency to taking extensive public comment before coming up with a replacement policy (a step not taken before the guidelines were originally issued).

Title IX of the 1972 Amendment to the Education Act forbids various types of discrimination, including sex-based bias by schools and colleges receiving federal funds, including grants and federally-guaranteed scholarships.

The 2011 guidelines came in a “Dear Colleague” directive sent to schools by DOE civil rights enforcers. It reminded schools of their duty to investigate claims of sexual misconduct or harassment and to act if those offenses were found, pointedly noting schools which fail to do so can be denied all federal funds.

Those guidelines also set several controversial procedures that DOE said schools must follow or risk having federal funds cut off. For instance, the guidelines DeVos plans to revoke or revise set the standard of evidence for school disciplinary hearings at a “preponderance of the evidence” – a much lower standard than the “beyond a reasonable doubt” standard used by criminal courts. Also unlike criminal court proceedings, in campus hearings under Title IX guidelines, accusers have the right to appeal decisions in favor of an accused.

Other parts of the 2011 guidelines have been criticized as unworkably vague or biased against those accused of misconduct, including how broadly to define sexual misconduct. The DOE official who in the Trump administration will be most directly responsible for supervising Title IX enforcement made headlines a few months back by estimating 90% of sexual misconduct complaints colleges receive do not involve clear violence, but instead claim students had engaged in sexual activity while drunk, or had retroactively come to regret earlier, apparently consensual activity.

Some law professors and civil liberties advocates have also attacked the 2011 guidelines; more than two dozen Harvard law faculty members protested when that university attempted to impose the DOE guideline procedures on Harvard Law School (which eventually adopted somewhat different procedures).

A few courts have also found school disciplinary hearings to have violated the constitutional due-process rights of those accused of misconduct, and the number of legal challenges being brought by those accused in school hearings is rising. While Obama DOE officials and their backers have defended the current guidelines as needed to protect victims of sexual violence or harassment, DeVos assailed the Obama administration for having “weaponized” DOE civil rights enforcers “to work against schools and against students,” rather than working with schools to protect the interests of all students.

A policy change is not surprising. In August, when faced with a lawsuit in which several students and universities were challenging the DOE guidelines, the agency had asked for a 90-day delay in filing a reply, to allow time to consider how it might want to rework the guidelines.

A recent University of Virginia (UVA) law graduate’s new lawsuit attacks the procedural standards for dealing with sexual misconduct cases the Department of Education (DOE) mandates for the nation’s colleges and universities. If successful, the lawsuit could Title IX enforcers to back off their aggressive readings of the specific procedures colleges and universities must use for campus hearings on sexual misconduct.

Filed June 16 in the federal district court in Washington, D.C., the lawsuit identifies the plaintiff with the pseudonym John Doe. In March 2015, a few months before Doe was scheduled to graduate, a sexual assault complaint was filed against him by another law student, identified only as Jane Roe.

It alleged that one evening in August 2013, about a year and a half earlier, Doe had engaged in sexual activity with Roe while she was so inebriated as to be incapable to consent; for his part, Doe denied Roe had seemed intoxicated, much less incapacitated.

Under Title IX of the Education Act Amendments, colleges and universities receiving federal funds are required to investigate and resolve complaints of sex- and gender-related discrimination (including sexual harassment or violence) by employees or students. Failure to do so can bring a federal funds cut-off for the school.

Soon Doe found himself in limbo: the school withheld his diploma until the complaint was resolved (which took almost a year and cost Doe the law firm job he had lined up for after graduation). His campus hearing in January 2016, presided over by a retired Pennsylvania Supreme Court justice, decided that, under the DOE-mandated “preponderance of the evidence” standard, Roe’s arguments held a “slight” advantage over Doe’s defense. Doe was ordered to months of counseling and received a lifetime ban from UVA locations and events.

In the new lawsuit, supported by the campus rights non-profit group Foundation for Individual Rights in Education (FIRE), the plaintiff sued the Department of Education and its Title IX enforcement arm, the Office of Civil Rights (OCR), and the top official at each agency. The suit charges OCR violated the Administrative Procedure Act, which sets fundamental procedures for government agencies, in several ways.

First, Doe’s suit targets Obama administration changes, first issued in an April 4, 2011 “Dear Colleague” letter sent by OCR to campus Title IX coordinators. There, the agency for the first time — a position since reiterated in “Questions and Answers” guidance ORC issued in 2014 — insisted campus hearings use the “preponderance of the evidence” standard in judging sexual misconduct cases. The agency has also chastised schools for using more stringent evidentiary standards, such as demanding claimants make a “clear and convincing” case, or prove a complaint beyond a reasonable doubt.

Opponents of the new stance argue it makes it far easier for a college or complaining student to win a case, but reduces the due-process rights of accused students. (Even the judge hearing Doe’s case called “preponderance of the evidence” the weakest evidentiary standard, the lawsuit notes.)

Further, the 2011 guidance letter departed from DOE’s previous stance and so amounted to important rulemaking, but failed to use APA-required notice-and-comment rulemaking method. The lawsuit also charges DOE’s proffered explanations for mandating a minimal evidentiary standard are so baseless as to be arbitrary and capricious.

Finally, it portrays the plaintiff as the victim of DOE’s and OCR’s well-intentioned but poorly targeted campaign against campus misconduct that, by combining “zeal and hubris,” turns the plaintiff and other defendants in weakly-supported cases into collateral damage, effectively denying their Title IX rights.

New York Universities Must Report Sex Offenses in College Transcripts

Virginia and New York in 2015 became the first states to require academic transcripts from their colleges to show whether a student has been disciplined for sexual assault, but other states have considered following suit, and some members of Congress support a federal law to the same end.

Advocates of this mandate argue it’ll protect against problem students transferring from one college to another state, where they may re-offend. They point to criminals like Jesse Matthew, a former student at a college in Virginia, who after being accused of rape transferred to another in-state college, where he was soon accused of a similar offense; years after dropping out, he confessed to the rape-murders of two coeds from different Virginia colleges (who wouldn’t have been helped by an old warning on Matthew’s transcript).

Similar bills have been introduced in a number of states, including California (where Gov. Jerry Brown vetoed a bill) and Maryland (where it died in committee). But with the support of groups like the National Association for Women, it’s likely to reappear.

Late last year, a similar bill was introduced in the U.S. House of Representatives. The “Safe Transfer Act,” (H.R. 6523), offered by Rep. Jackie Speier (D-CA) and a half-dozen co-sponsors, would cut off federal funds, including federally-backed student loans, to any college which doesn’t note on a student’s transcript: (a) for one year, any pending campus disciplinary proceeding accusing the student of sexual misconduct, or (b) for five years, any final finding of responsibility on such a charge.

Is There a Justification for Including Accusations of Sex Offenses in College Transcripts?

Rep. Speier argued that, by noting academic offenses like cheating on school transcripts, but not similarly recording incidents of sexual violence on campus, schools were treating the former more seriously than the latter. Her bill would explicitly provide federal educational privacy law allows the required disclosures. It also requires accused students to have been notified of the disclosure and given an opportunity to offer a statement of explanation to accompany the transcript (steps like notice and a chance to be heard may seem like obvious parts of procedural fairness, but in fact are frequently denied accused students in campus hearings on such charges).

But there are some serious problems with these proposals. First and foremost, there are serious problems in the way most colleges go about inquiries and disciplinary procedures in such cases. It’s no exaggeration to say students charged by campus officials are bringing — and winning — a growing number of lawsuits over shoddy investigations and seriously unbalanced procedures falling far short of due process.

The Foundation for Individual Rights in Education (FIRE), a nonpartisan non-profit organization whose fine work I know, first-hand, points out some other factors at work: many schools’ reluctance to seek assistance from law enforcement agencies, which have expertise and tools educators lack, and the Department of Education’s wrong-headed insistence that school disciplinary hearings use the lowest standard of proof, a preponderance of evidence, which would be rejected out of hand by any criminal court in the land.

Rather than ignoring grave flaws in many campus hearings, states should forego the showy but ineffective tactic of attaching “scarlet letter” warnings to transcripts — and instead work to build into campus disciplinary proceedings the fundamental fairness that’s now too often lacking.

The National Association of College and University Attorneys (NACUA) stirred controversy last year by publishing advice from a prominent law firm on ways colleges and universities can protect themselves against increasingly numerous and complex lawsuits filed by students involved in campus sexual misconduct hearings. The 18-page article, “Between a Rock and a Hard Place: A Discussion of Issues that Frequently Arise in Sexual Misconduct-Related Litigation against Colleges and Universities,” was written by five attorneys at the Richmond-based McGuireWoods law firm and published as part of the association’s NACUA Notes series of topical papers giving brief summaries of legal issues.

Risks to Schools of Conducting Sexual Misconduct-Related Litigation

After admitting that the growing number of lawsuits brought against colleges and universities, both by students making accusations of sexual misconduct and by students targeted by such allegations, represents a “legal and political minefield,” the article sketched some frequently litigated issues – on the one hand, accusations schools had discouraged students from filing complaints, failed to investigate adequately or impose appropriate punishments, or complaints by accused students that school disciplinary proceedings or sanctions were unwarranted or unfair. (Since 2014, the article notes, so-called “reverse Title IX” lawsuits by accused students challenging school disciplinary proceedings have outnumbered lawsuits by students claiming a school failed to take their accusations seriously.

Guidance from the federal Department of Education’s Office of Civil Rights, which can investigate and enforce sex-discrimination complaints under Title IX against federally-assisted schools, may not provide a reliable gauge for how schools should evaluate their potential Title IX liability in private litigation, the article further cautions. So they advise schools to eye every sexual misconduct allegation as potentially bringing lawsuits their way. It also encourages school counsel to engage in early planning and strategic thinking to place the institution in the best possible position if sued either by the claimed student victim of harassment or assault, or by the alleged student perpetrator.

The most controversial element of the advice came in its discussion of document preservation. While it will be important for schools’ ability to defend against litigation to have clear and well-documented policies for complying with Title IX requirements and spelling out procedures for dealing with student complaints, the advice paper also urged senior administrators and general counsel carefully to consider destroying early “preliminary and personal documents,” possibly including emails, pre-investigation staff notes, notes made during disciplinary hearings, and report drafts – which, it notes, could “prove very useful” to attorneys who may later sue the school – and instead keep just a “master list” of official proceedings, completed reports, and outcome documents offering a “single, consistent record” free of contradictions that might be found in earlier e-mails, notes and documents.

That suggestion drew fire from some as a ploy likely to be both unethical and ineffective. One commenter likened the suggestion to advising police they should hide evidence suggesting they had arrested the wrong suspect for a crime. Others noted the recommended document purge might run counter to retention policies, particularly at publicly-funded schools, or draw sanctions if the case went before a judge. Eventually, NACUA noted the policy was merely a suggestion by the article’s authors, and not endorsed by the association.