March 8, 2017


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On January 25, the U.S. Department of Education initiated its sixth inquiry into alleged mishandling of sexual assault investigations by Cornell University, in accordance with Title IX of the United States Education Amendments of 1972. While seemingly well-intentioned, the Department of Education’s aggressive application of Title IX is a disquieting assault on the United States Constitution and individual rights.

Title IX prohibits discrimination on the basis of sex in any federally funded education program or activity. In 2011, the Office of Civil Rights heavily expanded Title IX’s interpretation by disseminating the “Dear Colleague” letter. This communication, which was distributed with the noble intention of reducing sexual assault on college campuses, directed universities to evaluate sexual assault cases based on the “preponderance of the evidence” standard, as opposed to the “beyond reasonable doubt” standard, which is used for all other criminal cases. Moreover, the letter allows accusers to appeal not-guilty findings, and requires universities to shorten the length of investigations.

The stipulations contained in the “Dear Colleague” letter violate many of the legal protections afforded by the Constitution. Downgrading the burden of proof for cases of alleged sexual assault, as well as relaxing the procedural rigor involved in these investigations, impinges on the Due Process Clause, which guarantees a fair and even application of justice. Moreover, granting accusers the ability to re-try a case of alleged sexual assault violates the Fifth Amendment of the Constitution (Double Jeopardy Clause), which prohibits retrial after an acquittal.

There is good reason for ensuring that the process of justice is pursued fairly. Due process minimizes the frequency of false-positives in the justice system, ensuring that those who are innocent do not receive an unjust conviction. A “guilty” verdict of sexual assault by any fact-finding body can have devastating effects. To have a lower standard of guilt than is legally prescribed in a courtroom, and a different standard of evidence, in a university-run extrajudicial proceeding is brutally unfair to those who are accused.

In the years since the “Dear Colleague” letter’s circulation, there have been many lawsuits filed against universities for Due Process violations. Last year, a Cornell student accused of sexual assault sued the university over infringements of his Due Process rights (he later plead guilty to a lesser charge). There have also been cases where accused students were fully exonerated of their charges. Two years ago at the University of California San Diego, a student accused of sexual assault pseudonymously known as John Doe was barred from cross-examining his accuser and challenging evidence during university hearings for his alleged crimes. Moreover, the court used his silence against him when reaching a guilty verdict, which violates the Fifth Amendment. A California court later found that Doe was unable to receive a fair hearing due to these various Due Process violations and because the evidence summoned at the university tribunal did not indicate that Doe committed the accused crime.

The upsurge in Due Process violations at university hearings is not a coincidence. According to Inside Higher Ed, “Several of the recent court opinions note that the botched hearings occurred soon after a university received criticism for failing to protect a sexual assault victim in a separate case, or after the Department of Education began investigating an institution for violating Title IX.” As a result of intense pressure by the Department of Education to adhere to Title IX guidelines, universities are now overzealously applying Title IX instructions to avoid losing federal funding.

Many proponents of the “Dear Colleague” letter argue that this issuance was necessary in order to combat sexual assault on university campuses. However, sexual assault is currently a prosecutable offense in the United States. In the state of New York, for instance, rape is considered a felony. Sexual abuse is also a criminal act in New York. Cornell students, like all New York residents, have the right to have their allegations of sexual assault investigated and possibly prosecuted by the courts. If there is indeed unequal treatment of men and women before the law—as the “Dear Colleague” letter assumes—then this issue should be dealt with at the level of the justice system—not the university.

Universities are designed to foster scholarship. Police and courts exist with the expressed purpose of serving justice in a professional manner that respects people’s rights. The Obama Administration’s “Dear Colleague” directive breaks from this reality by empowering universities to adjudicate cases of sexual assault in a way that infringes on civil liberties. My hope is that the Trump Administration rescinds this flawed letter and honors the protections afforded to Americans by the Constitution.