- The Washington Times - Thursday, July 29, 2021

Top universities have developed three tiers of justice for students accused of sexual misconduct and other offenses that stack the deck against defendants, according to an education watchdog’s report.

The Foundation for Individual Rights in Education has released the report as the Biden administration appears poised to push schools back from Title IX regulations adopted last year to establish due process in university investigations and disciplinary proceedings.

Researchers examined policies for adjudicating complaints at 53 top universities, particularly complaints involving sexual harassment, which fall under regulations that the Trump administration implemented last year. Those regulations were designed to restore protections for the accused after the Obama administration forced schools to lower the standard of evidence from “clear and convincing” to “more likely than not.”

Under the new regulations, those accused of sexual misconduct or other offenses are entitled to be presumed innocent, to have impartial fact-finders and to cross-examine accusers. These are bedrock principles of American criminal and civil law.

Still, Ivy League universities and top schools such as Stanford University, the University of Chicago and Duke University do not routinely afford such protections, the report said.



Indeed, 44 of the 53 top-ranked schools were graded “D” or “F” when it came to safeguarding the rights of the accused, the report said.

The report found that schools have one set of procedures for covering offenses under Title IX, another for sexual misconduct offenses outside of the school’s control and a third for all other nonacademic offenses. Title IX is the federal prohibition of sexual discrimination in education.

Only in the Title IX category, which the Trump regulations cover, do the accused have fundamental guarantees, the report said.

“Institutions are taking every opportunity to avoid providing due process across the board — even going so far as to create three separate disciplinary systems per campus to afford students as few protections as possible,” said the report’s author, Ryan Ansloan.

“America’s top universities are offering rock-bottom due process protections,” Mr. Ansloan said.

The topic has been noteworthy in recent years in the area of Title IX sexual misconduct accusations.

The issue arose in 2011 when the assistant secretary for civil rights in the Obama administration’s Education Department wrote a letter to 7,000 schools receiving federal money.

The “Dear Colleague” letter concerned the duties of schools’ Title IX coordinators. It did not have the force of law, but those who received the letter understood it to be a veiled threat to imperil federal funding if they did not follow the guidelines.

The undersecretary for civil rights was Catherine Lhamon. Her nomination for the same job by President Biden has been widely interpreted in the academic and legal communities as a signal that the administration wants to revert to the Obama policies.

When the Obama administration regulations were mooted in May 2020, Ms. Lhamon tweeted that the Trump due process protections would “take us back to the bad old days … when it was permissible to rape and sexually harass students with impunity.”

Ms. Lhamon did not back away from that view during her Senate confirmation hearings last month. She also declined to assure senators that she believed accused students were entitled to the presumption of innocence.

Instead, she said investigators “should be open to the possibility that the person is not guilty.”

The Education Department issued a Q&A on Title IX sexual harassment that said schools must prosecute incidents even when no formal complaint has been made and no witnesses were willing to come forward.

The department has not responded to questions about what prompted the Q&A and what it aimed to accomplish.

The Q&A, Ms. Lhamon’s nomination and the oddly structured system on many top campuses all point in a troubling direction, said Robert Shibley, executive director of the Foundation for Individual Rights in Education.

“We were finally seeing student rights moving in the right direction, but Catherine Lhamon’s nomination shows just how threatened the progress we’ve made is,” he said. “If confirmed, Lhamon’s history and rhetoric indicate that she will put her thumb on the scale of justice, ripping away fundamental rights and encouraging a patently unfair shadow justice system that deprives students of their right to due process.”

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