KC Johnson is a professor at Brooklyn College and co-author of “The Campus Rape Frenzy: The Attack on Due Process at America’s Universities.”
Education Secretary Betsy DeVos ignited a firestorm in recent months after signaling that she might pull back Obama administration policies intended to protect victims of sexual assault at college campuses. But amid the intense criticism directed toward DeVos, one lawsuit out of Amherst College demonstrates just how unfairly the Obama policies can operate for students wrongly accused of sexual misconduct.
On a factual basis, the Amherst case — settled out of court this month between the university and an expelled student accused of sexual assault — is one of the most egregious since the Obama administration implemented its policy in 2011. The lawsuit revealed documents that the public almost never gets to see, such as the full investigative file, the transcript of the disciplinary hearing and other material from the campus process.
As a result, this case is perhaps the most comprehensive documentation of any single campus sexual assault adjudication in recent years.
The lawsuit arose out of a sexual assault complaint filed by an Amherst student 18 months after the assault was alleged to have occurred. The complainant claimed that she was forced to perform sexual acts, so the college conducted an investigation and held a disciplinary hearing before three administrators, expelling the accused student. But the hearing failed to include key evidence suggesting that the complaint was false, so the accused student sued the university in federal court.
As laid out in the legal complaint and subsequent filings, the controversy over the investigation has focused mostly on a string of texts that the accuser sent the night of the incident. The texts suggest that she had initiated the sexual encounter and that she was in search of a “good lie” to avoid fallout for having hooked up with the accused student, her roommate’s boyfriend.
Initially, the accuser denied sending any texts relevant to the case. During the college’s disciplinary hearing, however, the accuser appeared to contradict that claim, twice admitting that she had sent relevant texts. Inexplicably, none of the panel members asked her to address the contradiction.
When the accused student eventually learned of the texts, Amherst said he had found them too late, according to the school’s response to the legal complaint. The college later clarified that the timing didn’t matter, since investigators only sought texts indicating “that the incident had been ‘non-consensual.’ ” Exculpatory evidence, it seems, was irrelevant.
The accused student claimed in a suit that the college had violated his Title IX rights, and a federal district judge allowed the case to proceed. After the judge expressed strong skepticism toward Amherst’s investigation, the two sides came to a settlement.
Defenders of the Obama administration’s policies — which re-interpreted Title IX to require all colleges receiving federal funds to use the lowest possible standard of proof when adjudicating sexual assault cases — argue that the change was needed to bring justice to college rape cases. Such crimes often go unpunished because prosecutors rarely try ambiguous campus claims of sexual assault.
But Amherst’s procedures, which typify Title IX tribunals nationwide, show the danger of schools moving too far in the other direction. The college found the student guilty by a preponderance of the evidence — in other words, that more than 50 percent of evidence points to guilt. Amherst denied him and his lawyer the opportunity to directly cross-examine the accuser. It conducted the investigation and the hearing so quickly that college officials never discovered the text messages, the key piece of evidence in the case.
The desire to protect students from sexual assault has produced a system that struggles to determine the truth. Bypassing the criminal-justice system sacrifices the legal power to uncover relevant electronic, photographic or video evidence. Coupled with one-sided campus procedures, students such as the one from Amherst are forced to prove their innocence under conditions that make it virtually impossible to do so.
And there’s no indication that Amherst plans to implement fairer procedures in the future. The college issued a five-word response to the settlement: “The matter has been resolved.”
In recent weeks, accusers’ rights organizations have leveled the most intense criticism of DeVos’s efforts to reform Title IXand have praised the expulsion of the wrongfully accused Amherst student. Certainly such advocates should be commended for standing up for sexual assault survivors. But in their willingness to defend manifestly unfair results, activist groups have been too quick to dismiss concerns that innocent students can be found guilty.
Extremists, of course, exist on both sides of this issue: DeVos has correctly received criticism for meeting with a “men’s rights” group. And for important social and historical reasons, we should sympathize with student survivors of sexual assault.
But due process is all the more important when addressing highly charged issues, especially when schools make life-altering decisions on the basis of wildly incomplete evidence. DeVos can, and should, demand that higher education do better. Undergraduates shouldn’t need to spend years in court to achieve justice from their colleges.
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