This is not a new question, and it’s becoming more and more of an issue. It began over three years ago, when the Obama administration sent out a directive to universities and colleges that sexual violence and harassment of any kind violated Title IX laws against gender discrimination. This was an innovation prompted by the later-debunked claim that 1 in every 5 female college students became the victim of sexual violence.  The Department of Education demanded that schools which receive federal funds crack down on any such incidents by conducting their own investigations and taking definitive action against the perpetrators.

Needless to say, that’s led to exactly what one would expect from private and public institutions attempting to replace the court system, which was designed to deal with such allegations in either criminal or civil processes. Last week, the Boston Globe reported on a lawsuit from a student expelled by the University of Massachusetts at Amherst after a kangaroo-court process found him “responsible” for sexual violence even when none had been specifically alleged:

During a night of drinking, playing card games, and dancing with friends, the two students became friendly and flirted, and she later invited him to her room to have sex, the lawsuit said. They had consensual sex, and the female student at no point showed signs of intoxication, according to the suit.

The next day, the female student could not remember what had happened, according to the lawsuit. At her roommate’s urging, the female student went to the campus health center for an evaluation. The following day, she filed a complaint with the dean of students’ office.

In her written complaint, she never called what happened harassment, assault, or rape, according to the lawsuit.

Three days later, the university told the male student he was under investigation for threatening behavior, sexual harassment, sexual misconduct, and violating community living standards, the lawsuit said. He was immediately ordered to move off campus and was barred from the premises except to attend classes, the lawsuit said.

Two months later, the university held a disciplinary hearing, the lawsuit said. But the male student had not been given copies of case documents beforehand, key pieces of evidence were not presented during the hearing, the male student was repeatedly interrupted, and questions he had were ignored, the suit said.

Two days later, the student was told he had been found “responsible” for three violations: “sexual harassment, sexual misconduct and community living standards,” and he would be expelled.

The student’s appeal was denied.

Amherst is among more than 70 colleges and universities under investigation — not by the Department of Justice for ignoring due process and presumptions of innocence, but by the Department of Education for not being more aggressive in conducting these investigations and prosecutions. In my column today for The Fiscal Times, I argue that the attempt to force schools into the roles of courts and prosecutors all at once is a recipe for abuses of power:

Until recently, the most controversial application of Title IX had been whether schools had to eliminate male athletic competitive sports because of a dearth of opportunities for females. Three years ago, that changed as the Obama administration reinterpreted Title IX to require schools to respond to allegations of sexual harassment of all kinds: “sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature.”

Furthermore, rather than allow schools to presume innocence before finding guilt beyond a reasonable doubt, the Obama administration demanded that schools employ the civil standard of “preponderance of the evidence.” That standard, though, applies to cases brought to court, where rules of evidence and discovery still guarantee due process – as well as an unbiased court.

Furthermore, this pressure comes in part from a moral panic based on bad data. The April 2011 directive cites statistics from the National Institute of Justice that “1 in 5 women are victims of completed or attempted sexual assault while in college.” That study consisted of an online questionnaire conducted at only two universities, with uncontrolled participation – not a formal survey conducted under rigorous academic standards. The construction of the questions and interpretation of the answers produced a large amount of ambiguity as to the meaning of the survey, as the NIJ itself admitted.

Now the Department of Education has more than 70 universities and colleges under investigation for a lack of attention to complaints sexual assaults and harassment, claiming that these schools do not act stringently enough.  The schools themselves certainly have a difficult job in policing themselves. Unlike most businesses, almost all universities and colleges have residences as well as business areas, which means that they have some legal and moral responsibility to keep order and maintain safe living and working environments. This means that the schools have more liability than other businesses in maintaining safe workplaces, and the students and their parents certainly have higher expectations, even apart from the DOE.

None of that, though, amounts to a convincing case for the government to force universities to forego due process and respect for a presumption of innocence. Crimes should be handled by the police and courts, which have the expertise to handle such claims and strict legal requirements on how to proceed with investigations and prosecution. Lesser allegations should either go to civil court or to other independent legal structures that enforce due process and protect the rights of all students, especially on sensitive issues that can unfairly tarnish a person for life. School administrators are not competent to act as both law enforcement and judges, and the DOE’s attempts to deputize them for that mission tramples on basic American rights.

Since the column was published, I’ve heard from former Dept. of Education attorney Hans Bader, now at CEI, who corrects me on the history of this interpretation:

But Title IX was not “reinterpreted” by the Obama administration as covering “allegations of sexual harassment of all kinds,” since Title IX being interpreted to cover sexual harassment on campus under Title IX dates back to the Clinton Administration (for students) and to the Bush Sr. administration (for faculty and staff harassment), and was adopted by the courts many years ago (including a Supreme Court ruling in 1999).

What IS new about the Obama administration’s guidance is that it required colleges to (a) restrict cross-examination of complainants, (b) required them to replace the traditional clear-and-convincing evidence standard they used in campus discipline with a preponderance-of-the-evidence standard, and (c) restricted the appeal rights of accused people.  (Beyond a reasonable doubt – as opposed to clear-and-convincing-evidence — was not the customary standard in internal college discipline even before the Obama administration, and indeed, a federal appeals court ruling in Williams v. University of Georgia, unfortunately ruled that colleges cannot refuse to hold disciplinary proceedings even for students acquitted of rape by the criminal justice system’s beyond a reasonable doubt standard, but rather must independently adjudicate their guilt or innocence on campus – although federal appeals court rulings imply that a lesser presumption of innocence, such as clear-and-convincing evidence, is OK in campus disciplinary proceedings).

In a longer article, Bader explains why the “preponderance” standard was wrong from the legal point of view:

The Education Department’s reasoning for imposing a low “preponderance” standard on school disciplinary proceedings was that this “is the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court. (It cited court rulings under another civil-rights law, Title VII, which also bans discrimination). Therefore, it claimed, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence.’”

It was completely true, and completely irrelevant, that the preponderance of the evidence standard applies in lawsuits in general, as well as civil-rights cases. But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whether students or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).) Moreover, Students “are not agents of the school,” so their actions don’t count as the actions of the school.

The mere existence of harassment by students isn’t enough for liability under Title IX. More is required. The school’sown actions in response to harassment must be culpable. As the Education Department admitted in its 1997 “Sexual Harassment Guidance,” “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.” (62 FR 12034 (1997)). So to violate Title IX, an institution’s own actions must be proven culpable under a “preponderance” standard — not the mere occurrence of harassment.

Since an institution itself must behave culpably, not just the accused harasser, federal courts have held that there is no violation of the civil rights laws even if harassment occurs, as long as the institution investigates in good faith in response to the allegation of harassment. That’s true even if the institution ultimately refuses to discipline a harasser based on the reasonable belief that he is innocent, after applying a firm presumption of innocence.

Be sure to read it all — and also be sure to follow the Washington Examiner’s Ashe Schow, who has done a great job in highlighting these abuses. She has challenged several members of Congress for their support of this interpretation of Title IX, and got one disappointing response from Senator Kelly Ayotte (via Instapundit):

In response to my six questions about the Campus Safety and Accountability Act, Johnson sent the following via e-mail:

Those who are accused in a court of law will retain their constitutional rights. No one can be convicted of sexual assault in a court of law now, or as a result of this bill, unless the case is proven beyond a reasonable doubt. As in any criminal court case, if the accused can’t afford a lawyer, one will be appointed for him or her. To begin with, no criminal prosecution can be brought without probable cause and in the case of a felony charge, a grand jury indictment.

With statistics showing one in five women is the victim of campus sexual assault, the status quo is clearly unacceptable. Campus sexual assault is a serious and disturbing crime, and it’s clear that survivors aren’t getting the support they need and deserve. This bipartisan bill will bring accountability to this very serious problem — and it will ensure that only those who are properly trained are investigating these crimes, benefiting both the victim and the accused. Colleges can’t be allowed to hide criminal activity, and with greater transparency, students and parents will have the data they need to make informed decisions.

This legislation includes provisions to help smaller schools afford the cost of carrying out the bill’s accountability standards, including grants to help institutions ensure only those who are properly trained handle sexual assault cases.

A few problems with this response: First, Johnson’s response doesn’t address my question about providing due process for men in campus hearings, since the outcome of those hearings have the potential to ruin lives.

Second, Johnson uses the oft-repeated “one-in-five” statistic, which has been debunked numerous times before (and by me on Wednesday). Johnson also completely ignores the fact that the accused aren’t getting the support they need and deserve.

We have a perfectly capable court system in place that protects the rights of everyone, and which unlike the schools themselves has no stake in the outcome of disputes and allegations. If we need more courts to handle the traffic, then fund those rather than transform higher education into inquisitions and star chambers.