The Old College Try, and The New College Tribunal

Or you'll get a preponderance-of-the-evidence disciplinary hearing.

Or you’ll get a preponderance-of-the-evidence disciplinary hearing.

In disciplinary proceedings involving claims of sexual assault, universities continue to find themselves in an intolerable situation, caught in a lawyer-triangle of the Department of Education’s Office of Civil Rights, student-complainants and the student-defendants.

In part, at least, as a result of OCR’s “Dear Colleague” letter to colleges and universities about Title IX and disciplinary proceedings, there has been an upsurge in reported instances of sexual assault on campus.

At the same time, there has been a sharp increase in lawsuits brought by student-respondents (that is, the male students who are accused), as this Wall Street Journal article details:  In Campus Rape Tribunals, Some Men See Injustice.

The scenario set out in the Journal article has become common, and one troubling from a due-process standpoint:

Last spring, Duke University expelled Lewis McLeod, a senior, for allegedly sexually assaulting a freshman woman in his room after meeting at a bar.

The woman had told Durham police Mr. McLeod had sex with her when she hadn’t wanted to. He said it was consensual. Police investigated but didn’t charge him.

A Duke University disciplinary panel didn’t find he gave her alcohol or used force. But the panel concluded it was “more likely than not” the woman didn’t agree to sex and was too intoxicated to consent. Regarding a degree, Duke lawyers later said: “Mr. McLeod is not entitled to that honor.”

Two weeks before he was to graduate, he became the first student Duke expelled for sexual misconduct under a new university policy.

Mr. McLeod, 24 years old, is suing Duke for his diploma, arguing the university unjustly made him an example to show a get-tough approach. “I believe that I’m wrongfully accused,” he says. “I believe that it was an unfair process and I believe I had something I earned taken away from me.”

His case is part of a broad and rapid change in how U.S. colleges and universities deal with sexual-assault allegations. Campuses have rewritten policies to lower the burden of proof for finding a student culpable of assault, increasing penalties—sometimes recommending expulsion. In the process, schools find themselves in legal minefields as they try to balance the rights of accuser and accused.

We have written about this issue before: Title IX, University Discipline, Sexual Assault and Parallel Proceedings.

Prelude to a parallel proceeding.

Prelude to a parallel proceeding.

Here is a slightly longer piece: Dear Colleagues All: University Discipline, Sexual Assault and The Department of Education.  Last year, we pointed out that:

Not surprisingly, most universities have proven themselves more adept at dealing with “academic” infractions then with “conduct” issues.  With the advent of coeducation and then a more culturally diverse (and potentially more fractious) student, faculty and staff composition, the proficiency gap between academic-related discipline and conduct-related discipline, in many instances, grew more pronounced.

Back in 2011, the federal Department of Education’s Office of Civil Rights issued a “Dear Colleague” letter on the subject of campus sexual assault and how, under Title IX, OCR expects colleges and universities to handle claims of sexual assault. More recently, a White House summit on campus sexual assault; a number of high-profile lawsuits and OCR investigations; and new congressional legislative interest have all conspired to mean that colleges and universities ignore the “Dear Colleague” situation to their peril.

Given the infamous “rape” case against Duke lacrosse players, one would think that Duke would take a more thoughtful approach to these matters, but things seem otherwise.  If one has any doubts about the university’s conduct in that matter, watch the 60 Minutes piece about Mike Pressler, the Duke lacrosse coach whom the university forced to resign.