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Joining a growing trend, New York enacted a law in 2015 to combat sexual violence on college campuses. While that purpose is laudable, the “Enough is Enough” law strikes an unwise balance between the desire to protect students from criminal acts and the need to protect innocent students from false accusations. 

Governor Andrew Cuomo touted the law as “the nation’s most aggressive policy” to end sexual assaults on campus. Unfortunately, laws like New York’s often encourage schools to accept every sexual misconduct accusation at face value while depriving accused students of the opportunity for a fair hearing before they face expulsion or suspension. 

 

Affirmative Consent 

A sexual assault consists of sexual contact or intercourse without consent. While criminal laws generally define consent as a voluntary agreement, student disciplinary codes in New York must now define consent more narrowly.  

The law requires universities to add specific language to its code of conduct about consent to engage in sexual behavior. Most of that language is uncontroversial and tracks existing law. Consent cannot be coerced by force, intimidation, or threats. Consent can be withdrawn at any time and sexual activity must stop at that point. Consenting to sex in the past does not automatically constitute consent for all future sex acts. 

The code must also provide that consent may only be given by someone who is capable of consenting. A frequent issue in sexual assault accusations on campus is whether the accuser was too intoxicated to give consent. The code must state that a person who is incapacitated and unable to make a voluntary choice to have sex is incapable of consenting.  

More troubling is the new law’s requirement that a university’s code of conduct must include this definition of “affirmative consent”: “Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. 

Consent is often conveyed by participation in a sex act. Active participation is an “action” that signals “clear permission” and “willingness” to have sex. The line between active and passive participation, however, is difficult to draw. It is true that using force to resist a sexual assault is not required to convey lack of consent. At the same time, the failure to resist at all, including verbal resistance by saying “no” or “stop or “I’m not ready for to have sex with you, may well signal consent. 

Some people are quiet and passive by nature. Consensual sex is no less consensual simply because a participant is silent. In a criminal prosecution, a jury may view passive participation and silence as strong evidence of consent. The required code of conduct places students accused of a code of conduct violation in a difficult situation by depriving them of opportunity to demonstrate that passive consent was given for a willing sexual encounter. 

 

Interim Suspensions 

Public colleges and universities are required to respect the constitutional guarantee of due process before they deprive an individual of liberty or property. Courts have consistently found that students have a property interest in their educations and may have a liberty interest in avoiding reputational injury that results from discipline. 

The New York law pays too little attention to the due process rights of accused students. In particular, the law not only allows but requires colleges to suspend accused students immediately, with no hearing or other procedural safeguards, when the students are “determined to present a continuing threat to the health and safety of the community.” The law does not explain how that determination is to be made in the absence of a hearing.  

No determination that a student is a “threat” can be made fairly in the absence of a hearing at which the accused student has the right to contest the evidenceto present his own evidence, and to require wrongdoing to be proved. While the law allows a student to request a “prompt review, reasonable under the circumstances” of the interim suspension, it is not clear that schools will deem a full hearing that adequately safeguards the rights of the accused to be “reasonable under the circumstances.” 

In any event, due process usually demands that a hearing be held before a deprivation occurs. A “review” of a suspension that has already been imposed is no substitute for basing a suspension on proof at a fair hearing that is sufficient to overcome the presumption of innocence. The time in school that a student loses during an interim suspension cannot be returned if an eventual hearing determines that the student did nothing wrong and poses no threat at all. 

 

Due Process Safeguards 

The due process safeguards that must be provided for accused students at a final disciplinary hearing are inadequate. The law gives accused students the right to testify and present evidence, but it makes no mention of the right to confront and cross-examine the accuser. In fact, the accuser is even required to attend the disciplinary hearing. Cross-examination of accusers exposes false accusations and has long been recognized as the most powerful assurance that accusations are tested fairly. 

While the law requires schools to have a student’s responsibility determined by impartial decisionmakers, the law does not require schools to base findings of responsibility on “clear and convincing” evidence. Many schools have used a less demanding “more likely than not” standard that gives students too little protection against false accusations.  

Governor Cuomo believes the New York law is a model for the nation. In fact, the law makes it much too easy for schools to expel innocent students who are falsely accused of sexual misconduct. The law needs serious revisions before it can be regarded as a model to be followed by other states.  

Disciplinary Measures for Sexual Misconduct Charges Come Under Review

I have previously written about a state court decision striking down a public college’s disciplinary procedures as fundamentally flawed and unfair. More recently, two private colleges have made out-of-court settlements in increasingly common federal lawsuits brought against them by students disciplined or expelled over allegations of sexual misconduct.

Last December, Middlebury College in Vermont reached a settlement with a former student – the accused student and accuser were anonymized as John Doe and Jane Doe – who had been accused of sexual misconduct during the fall 2014 semester while studying overseas with the School for International Training (SIT). Middlebury’s student disciplinary policies extend to students’ behavior off-campus.

SIT investigated the complaint, made by a non-Middlebury student also in its program, but dismissed the complaint in December 2014. But even though Middlebury had allowed John Doe to register for the Spring 2015 semester, after his accuser contacted Middlebury and threatened to file a complaint against it with the Department Education, Middlebury launched its own disciplinary hearing, using an outside lawyer to investigate.

Expelled Without Due Process

The investigator, using a preponderance-of-the-evidence standard (recommended by controversial Department of Education guidelines), and her own evaluation of witness credibility and other evidence, found John Doe responsible for sexual misconduct. Without providing a hearing, the school expelled him in August.

The accused student, who consistently maintained innocence of the assault accusations, went to the federal court in Brattleboro, where he noted his exoneration in the SIT investigation and attacked Middlebury’s disciplinary procedures as inherently biased against men. He sought a court injunction ordering the school to let him continue his studies while the case continued, pointing out he would lose an $85,000 job offer if unable to graduate on schedule.

Federal Courts Intervene

Despite the school’s objections, the federal judge agreed the student would be irreparably harmed if not allowed to continue his education, and ordered him re-admitted. Months later, the school and student announced they had agreed to settle the lawsuit. The student will transfer to another school, but other terms of the settlement were undisclosed.

In another federal case last year, a judge in Virginia rebuffed efforts by Washington and Lee University to dismiss the lawsuit another John Doe had brought against it, claiming the school’s sexual misconduct disciplinary proceedings had violated federal education law by discriminating against him based on his sex.

The case involved allegations where a party to an apparently consensual sexual event later develops regrets and describes it as non-consensual. The accused student’s lawsuit alleges he met the accuser at an off-campus party in February, and she accompanied him to his dorm room, and had apparently consensual sex then and on another occasion. After he began seeing another student, however, the accuser broke off with him, and that summer filed a complaint claiming their first encounter had actually been a sexual assault. The school decided to expel him.

The accused student further alleged he was not allowed to have legal counsel during the school’s investigation, which he called rushed and badly managed. He further claimed his accuser was influenced by a lecture given by the university’s chief anti-sex discrimination official shortly before she filed her complaint, which allegedly told students regrets over a past sexual encounter show it was not truly consensual.

The presiding judge found the accused student’s claims raised sufficient doubt about the validity of the school’s disciplinary proceeding to let the case go forward, and set an April trial date. Then this February, a settlement in the case was announced, with no details released.

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.