May 23, 2013
Last week in an article for USA TODAY titled "New sexual harassment guidelines a positive step," Melanie Kruvelis followed in the footsteps of the Departments of Education and Justice by failing to distinguish between harassment—however it is defined—and physical assault.
She observed that the federal "blueprint's" (PDF) newly mandated definition of sexual harassment—that is, "any unwelcome [verbal or physical] conduct of a sexual nature"—"hasn't been sitting well with free-speech advocates." Kruvelis even acknowledged the possibility of innocuous speech like requests for a date falling under this new definition.
"But what the First Amendment champions are missing is the silencing of sexually violated men and women across the country today," she counters.
On the contrary, what the ED, the DOJ, and Kruvelis herself are missing is that university policies mirroring this definition, which silence a significant amount of protected speech, will eventually lead to the silencing of everyone—including sexually violated men and women across the country.
First, Kruvelis points to examples of rape cases as evidence that this change in harassment policy is necessary. In one case, an advisor suggested that an alleged rape victim should leave school. In another, a lack of physical evidence prevented a case from going forward. How would additional limits on student speech prevent these problems in the future?
Kruvelis asks, "[I]s the off-chance that someone will report an innocuous question worth sacrificing the knowledge that rape survivors have someone to turn to at their school?" Putting aside the author's blithe dismissal of the chilling effect that such regulations will have, this is an apples-to-oranges comparison. Expanding the definition of sexual harassment to include protected speech (which, needless to say, is not assault) will not help protect victims of sexual assault, particularly after the fact. If anything, limits on speech about sex will impede the frank discussions that will be necessary to combat the problem of sexual assault in a meaningful way. We have already seen this happen in the case of Landen Gambill, the University of North Carolina at Chapel Hill student who was charged with intimidating the person she had accused of sexual assault (he was found not responsible for that assault—a result with which she disagreed) while criticizing UNC's handling of her case.
Further, Kruvelis seems to use the words "harassment" and "assault" interchangeably, focusing in her headline on "harassment guidelines" but referring in her first sentence to "an issue plaguing campuses all across the country: sexual assault." She is conflating issues, and to some extent it's no wonder—two United States federal agencies have done so as well. Let's not forget that former Montana Supreme Court Justice Diane Barz, after her investigation, found (PDF) that the University of Montana "has a problem with sexual assault." (Emphasis added.) But rather than simply addressing the problem of policies and procedures relating to assault (and FIRE has significant concerns over those changes), the ED and DOJ used this finding to justify limiting free speech to that which will never make anybody uncomfortable.
By expanding the definition of sexual harassment to include protected speech, the Departments of Education and Justice have taken not one step forward, but two steps back.
Oakland University's Motion to Dismiss in 'Hot for Teacher' Case Relies on an Unconstitutional Speech Code and Shows Its Lack of Regard for the First Amendment
May 22, 2013
Last week, I blogged about Oakland University's motion to dismiss in Joseph Corlett's lawsuit against the university for violating his First Amendment rights. Corlett, as Torch readers may recall, is the student who was found guilty (PDF) of "unlawful individual activities" for writing an entry called "Hot for Teacher" in his class journal (PDF). Corlett was suspended for three semesters and subjected to other disciplinary measures because he wrote about his professor being like the character Ginger from the television series Gilligan's Island, as opposed to the character Mary Ann, as well as other mildly suggestive musings. A full recap of Corlett's ordeal is available here and here.
Corlett sued Oakland in March 2013. On April 30, Oakland filed a motion to dismiss. FIRE believes it is important to understand why its legal arguments are not only weak but misrepresent basic principles of First Amendment law.
Last week we explained how Oakland's conflation of the expressive rights of college students and fifth-graders and its claim of unfettered discretion to discipline students for their speech ignores both the First Amendment and due process rights. But Oakland does not stop there. Its brief is flawed for two other important reasons.
Oakland Relies on an Unconstitutional Speech Code to Suppress Corlett's Speech
Oakland defines discriminatory harassment as "any physical or verbal behavior, including but not limited to sexual advances or requests for sexual favors, and any written behavior ... that stigmatizes or victimizes an individual on the basis of race, sex, sexual orientation, age, height, weight, handicap, color, religion, creed, national origin or ancestry, marital status, familial status, veteran status, or other characteristics not permitted by law." Over 20 years ago, the same federal district court where Corlett filed his lawsuit held that a similarly overbroad policy prohibited speech that universities like Oakland are both legally and morally bound to protect. Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (striking down a speech code because a university cannot suppress constitutionally protected speech when prohibiting discriminatory harassment). Moreover, Oakland's policy is so vague that students have no way of knowing whether their speech might inadvertently run afoul of the policy.
The easiest way to see how this policy violates the First Amendment is to compare it to the legal standard for peer harassment in an educational setting, as established by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). In Davis, the Court defined actionable harassment as unwelcome discriminatory conduct that is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Id. at 633. Although the Davis case sets a standard for peer-on-peer sexual harassment, where there is no power differential between the parties, it is also applicable in the student-teacher context: here, the professor is the position of power over her supposed harasser. That makes the rationale for punishing Corlett even weaker.
However embarrassed Corlett's professor may have felt when she read Corlett's journal entries, his actions cannot be described as "severe" or "pervasive" enough to meet the Davis threshold. Nor can comparing an adult woman to a 1960s sitcom character be considered objectively offensive. And as the Doe court made clear, even if "large numbers of people" found Corlett's journal to be "gravely" offensive, the University still would not be able to proscribe his speech. Doe, 721 F. Supp. at 863. Finally, there is no evidence that she felt so harassed that she could no longer operate on campus. Corlett's daybook simply does not constitute harassment as defined by the Supreme Court.
An aside: On May 9, the Departments of Justice and Education sent a letter to the University of Montana that is intended as "a blueprint for colleges and universities throughout the country," in which it declared that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature'" including "verbal conduct" (that is, speech). Because this definition is blatantly unconstitutional for reasons explained here and here, it does not affect the legal analysis—and should not affect the outcome—in this case.
Corlett's daybook is at the core of speech protected by the First Amendment precisely because others could find it distasteful, offensive, or puerile. Oakland nevertheless tries to characterize his journal entry as workplace discrimination, namely "discriminatory, harassing, and intimidating conduct," which necessitates protection of employees from harassment by non-employees. The university supports this argument with a string of cases involving private workplaces where First Amendment rights are not implicated. However, the Supreme Court made clear in Davis that the standard for harassment in the educational setting is not the same as in the workplace. And the Doe court noted that unlike a business, where efficiency is crucial, a university must champion free expression because "the free and unfettered interplay of competing views is essential to the institution's educational mission." Doe, 721 F. Supp. at 863. Corlett is a student with full First Amendment rights on a public university campus, so workplace cases are irrelevant here. Corlett's few journal entries about his professor's appearance are not so "severe, pervasive, and objectively offensive" that they have the impact required by Davis, and thus they are protected by the First Amendment.
Oakland's Smear Tactics Cheapen the Importance of the First Amendment Issues at Stake Here
Oakland's final insult to the First Amendment is to attack Corlett personally and to caricature his journal entries, hoping that if the court doesn't like the speaker, it might be more inclined to allow Oakland to silence his speech. Thus, we are introduced to Corlett as "an adult male who came to the college environment after decades of working in the construction industry"—and we're all familiar with the stereotype of the boorish construction worker. And he likes guns: "A later entry details how Corlett "sleep[s] nude, [but] only feel[s] naked without [his] gun on the nightstand." The brief also insinuates in several places that he is callous to the feelings of his wife, and repeats three times that Corlett compared his professor to Ginger from Gilligan's Island ("an oversexed caricature from a sitcom"), as though that should decide the case in itself.
Cheap shots like these generally are a red flag for a weak legal argument. But Oakland is not just a garden-variety litigant. It's a government entity trying to smear a private citizen in an effort to justify punishing his speech. At the same time, it's sending a warning to others on its campus who might dare to say something Oakland doesn't like. The First Amendment is designed to prevent government from silencing individual voices, which is why this case is very serious, despite what may seem at first glance to be facts tailor-made for a late-night comedy show.
FIRE is monitoring it carefully.
May 22, 2013
Newspaper in Chains - Shutterstock
As the nation focuses on the news about the Department of Justice's monitoring of the Associated Press (and other reporters), it's easy to forget that many student media outlets routinely endure egregious treatment from administrators at their schools. But yesterday, writers Devin Karambelas and David Schick penned a spot-on article for USA TODAY reminding us of just that:
Student newspapers often deal with many questionable — and sometimes downright illegal — actions from administrators who shut down operations over an explicit sex issue, campus safety officers who refuse to provide any criminal records (including of a sexually violent nature), student government associations that cut print funding in retaliation and colleges that avoid open-record laws to conduct presidential searches in secrecy.
Karambelas and Schick, who are listed as "collegiate correspondents" for USA TODAY (and are likely students themselves) may well have experienced this firsthand, as FIRE has seen many cases where such strategies are used by administrators to interfere with freedom of the student press.
For instance, the authors describe what happened at Central New Mexico Community College (CNM) earlier this year as a perfect example of the kinds of difficulties student newspapers face from administrators. Upon the release of a sex-themed issue, administrators at CNM shut down the campus newspaper, The CNM Chronicle, and pulled its issues from racks across campus, claiming that their motivation was to protect a minor who had been questioned in the issue (The Chronicle had obtained parental permission to print her answers). Though the administration later reinstated the paper after receiving a letter from FIRE, CNM faculty are still displeased with the lack of apology or affirmation of the First Amendment from their administrators.
An equally chilling threat to free press came to us from Stanford University last week. In the Stanford Daily, editor in chief Miles Bennett-Smith writes of an email he received one morning this month—along with a follow-up call 20 minutes later—in which an administrator accused the newspaper of printing a libelous story. Though Bennett-Smith knew his free press rights, he points out that the email itself seemed intimidating:
And while I have no way of knowing whether or not the actions of the senior official who contacted me were at the direction of the general counsel or any other group of University administrators, they felt and read strongly like intimidation.
In fact, after I noted that The Daily had done its due diligence and was neither malicious nor negligent in its coverage of the story, the official was very agreeable. But that does not make the email go away nor change the tone of what read as a threat of a lawsuit should The Daily not take the story down and redact the names of the officials alleged to have done wrong.
Though FIRE has not seen a case of administrators demanding the phone records of student newspaper offices, many of the actions taken by college officials—from blatant censorship to implied threats—do much to stifle the free press rights of students on campus. Unfortunately, an administration keeping tabs or trying to control a media outlet is not something limited to the Associated Press; it begins much earlier than that.
May 21, 2013
Here's today's press release:
ORLANDO, Fla., May 21, 2013—The University of Central Florida (UCF) has reinstated Professor Hyung-il Jung three weeks after unconstitutionally suspending him on the basis of an in-class joke. FIRE wrote to UCF President John C. Hitt in April, urging this result and reminding UCF of its First Amendment obligations.
On April 23, Jung, a lecturer in UCF's Rosen College of Hospitality Management, was leading an exam review session with roughly 25 students in an accounting course when, according to the Orlando Sentinel, he stated: "This question is very difficult. It looks like you guys are being slowly suffocated by these questions. Am I on a killing spree or what?" A student in the review session reported the joke to the UCF administration, which issued Jung a reprimand letter on April 24, suspending him from "all ... university duties," barring him from the Rosen College campus, and prohibiting "contact of any nature, with any students, for any reason." UCF additionally demanded that Jung undergo a "thorough mental health evaluation" and obtain written certification from a medical professional that he was "not a threat to [himself] or to the university community."
FIRE wrote to UCF on April 26, reminding the university of its duty to protect Jung's First Amendment rights and making clear that his in-class joke in no way constituted an unprotected "true threat." In Virginia v. Black (2003), the Supreme Court defined true threats as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."
Days later, UCF informed Jung that he would not be required to submit to a mental health examination. UCF formally reinstated Jung on May 13, nearly three weeks after it suspended him. Jung will teach a course at UCF this summer.
"We're pleased that Professor Jung's ordeal is finally drawing to a close," said FIRE President Greg Lukianoff. "It was outrageous, however, for UCF to have suspended him in the first place. No reasonable person could have felt threatened by Professor Jung's joke. And it is downright chilling that UCF demanded he submit to mental health counseling because of his clearly protected expression. UCF must expunge this incident from Jung's record and ensure that neither he nor any other faculty member or student will be punished for speech protected by the First Amendment."
FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities. FIRE's efforts to preserve liberty on campuses across America are described at thefire.org.
Peter Bonilla, Associate Director, Individual Rights Defense Program, FIRE: 215-717-3473; firstname.lastname@example.org
May 21, 2013
The Miami Herald's Glenn Garvin wrote yesterday to emphasize what's at stake following the Departments of Education and Justice's May 9 federal "blueprint" letter defining sexual harassment as "any unwelcome conduct of a sexual nature," including "verbal conduct."
Garvin points out that under this broad definition, William Shakespeare may be persona non grata on campus. He explains:
Who gets to define "unwelcome"? The listener and the listener alone — no matter how high-strung, neurotic or just plain pinheaded that person is. I can understand why you might suspect I'm extrapolating or exaggerating here, but really, the feds' letter is quite explicit: the words don't have to be offensive to "an objectively reasonable person" to be considered harassment.
To demonstrate the real threat to speech from overly broad harassment codes, Garvin takes a look at past instances of enforcement that will be very familiar to FIRE supporters:
But surely, you say, surely nobody will take the letter of the law to such absurd extremes. And surely you are wrong: They already have. ... A janitor at Indiana University-Purdue University Indianapolis was disciplined for reading a disapproving book on the Ku Klux Klan. Marquette ordered a graduate student to remove a "patently offensive" quotation by Dave Barry from his door. (Let's see if my editors are brave enough to print it: "As Americans we must always remember that we all have a common enemy, an enemy that is dangerous, powerful, and relentless. I refer, of course, to the federal government.")
Indeed, Shakespeare, an author "whose works include 113 synonyms for genitalia" (they've been counted) is probably not safe under ED and DOJ's new mandate.
Read the rest of Garvin's article in The Miami Herald.
May 20, 2013
Last Thursday night at a special Tennessee Senate panel meeting, University of Tennessee System President Joe DiPietro and state Senator Stacey Campfield shared their respective opinions on UT's use of student fees to support student-run "Sex Week" events.
Torch readers might remember that earlier this year, private donors saved Sex Week after the school rescinded $11,000 originally set aside for the occasion. $6,700 in student fees were still used to fund the events.
The Associated Press reported that Campfield "suggested ... that students should be able to opt out of their fees being used to pay for events they find objectionable." FIRE has written before about the imprudence of creating an opt-out system for student fees. In response, DiPietro emphasized that the university must disburse fees for speakers without consideration of the content of their messages, saying "While I may have personal views about some of those topics, I have a professional obligation to keep our university in a position that complies with the First Amendment of the U.S. Constitution."
According to the Knoxville News Sentinel, "Campfield compiled a list of paid speakers at UT in the past three years that he said, with one or two exceptions, appeared to be 'left-leaning people.'" This, he said, shows "there probably seems to be some content bias." But DiPietro noted that many conservative speakers have spoken on campus for free and thus wouldn't be on the list. Further, he explained that regardless of the list, "[o]rganizations need to apply in order to gain or secure the funding." DiPietro said that UT's Republican group hasn't requested funding for speaker fees in the last three years.
As reported in the Sentinel, Campfield's objections to Sex Week continued:
Campfield, who has sponsored failed legislative efforts to ban elementary and middle school teachers from addressing gay issues, said he also worried that underage children attending the university would have access to adult material.
DiPietro said that at the time of Sex Week, six of 27,000 UT students were under 18, and that all students should be "treated the same."
It looks like this will be an uphill battle for Campfield—as it should be. According to State Senator Joey Hensley, the chairman of the panel, the Senate Higher Education Oversight Subcommittee will prepare a report for the Senate Education Committee, which could be used to guide the legislature next year. For now, Hensley remarked, "We've talked about it enough."
May 20, 2013
Since the Departments of Education and Justice sent out their letter outlining a new, censorship-laden "blueprint" for campus sexual harassment policies on May 9, free speech advocates, commentators, and news outlets have strongly and swiftly voiced their objections and concerns and explained why the letter's mandates are unconstitutional. But not everyone is jumping into the debate—for instance, the Department of Education itself.
In an article covering responses to the letter, the Washington Free Beacon reported its experience with the Department of Education last week:
The Washington Free Beacon asked the DOE for comment. They responded, asking for guidance as to where the word "speech" appeared in their letter to the university. The Free Beacon referred them to the page of their letter that now defined sexual harassment to include "verbal conduct."
After that email exchange, they did not respond to further requests for comment.
The Washington Free Beacon should certainly not take this personally. FIRE and the American Association of University Professors (AAUP) have previously written several times to the Department of Education's Office for Civil Rights, and we've received no answer—for more than two years.
So readers, please do us a favor and write to the Departments of Education and Justice about this important matter—and of course, let us know if they respond. Maybe you'll be the first to hear back from these public servants!
May 17, 2013
Joseph Corlett - The Detroit Free Press
When Oakland University, a public university in Michigan, suspended student Joseph Corlett for writing an entry called "Hot for Teacher" in his class journal, the story generated widespread media coverage. As Torch readers may recall, Corlett's ordeal began when he submitted his writing journal to his Advanced Critical Writing professor in early November 2011. The course materials describe the student journal as "a place for a writer to try out ideas and record impressions and observations," and state that it should contain "freewriting/brainstorming" and "creative entries."
One entry in Corlett's journal (PDF), titled "Hot for Teacher," tells a story of being worried about being distracted in class by attractive professors, including his Advanced Critical Writing professor. A separate entry states that his professor is like the character Ginger from the television series Gilligan's Island, while another professor is like the character Mary Ann. Unfortunately, this sort of "freewriting" apparently wasn't a welcome form of "creative" exploration for Corlett's professor.
In an email on November 29, Corlett's professor announced to some of her colleagues, "Either Mr[.] Corlett leaves campus or I do." On December 7, Corlett met with Dean of Students and Assistant Vice President of Student Affairs Glenn McIntosh and Vice President for Student Affairs & Enrollment Management Mary Beth Snyder, who pressured Corlett to withdraw from his winter semester classes. Corlett was also informed (PDF) that he was under investigation for possibly violating the Student Code of Conduct.
In January 2012, Oakland found Corlett guilty (PDF) of "unlawful individual activities" after a hearing, based solely on his journal writing. He was suspended for three semesters, barred from campus, put on disciplinary probation for the rest of his academic career, and required to show evidence of "counseling ... to work on sensitivity issues" to be readmitted.
Corlett sued Oakland in March 2013 for violating his First Amendment rights. On April 30, Oakland filed a motion to dismiss. Its legal arguments are weak, but the brief is nevertheless troubling. It exploits misconceptions about First Amendment law to craft an argument that, if accepted, would further damage free expression in academia.
Oakland Equates Expressive Rights of College Students and Fifth-Graders
First, Oakland relies on First Amendment cases involving secondary and even elementary school students to subject Corlett, an adult, to the limitations on free expression placed on children. Oakland is exploiting a troubling tendency among courts to apply standards developed for high school students to the college context. Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988), the Supreme Court decision upon which Oakland primarily relies, held that the First Amendment does not preclude high school educators from "exercising editorial control over the style and content of student speech in school-sponsored expressive activities, so long as their actions are reasonably related to legitimate pedagogical concerns." Hazelwood, 484 U.S. at 273. Oakland also relies on dicta in Ward v. Polite, a recent ruling from the United States Court of Appeals for the Sixth Circuit which commented on K–12 precedent in a case involving a graduate student studying social work. Ward v. Polite, 667 F.3d at 734 (6th Cir. 2012).
Several appellate courts have found it inappropriate to analogize high school cases to the university setting because of the differences between the two types of institutions. See, e.g., McCauley v. University of the Virgin Islands, 618 F.3d 232, 243 (3d Cir. 2010) (noting that grade and high schools "prioritize the inculcation of societal values ... [but p]ublic universities encourage teachers and students to launch new inquiries into our understanding of the world"). And typically those that do use high school cases to adjudicate college free speech disputes explain why the analysis is valid. For instance, although the Sixth Circuit cited Hazelwood in its Ward decision, it included various caveats, such as acknowledging that the more mature the student, the fewer the restrictions the First Amendment will allow. Ward, 667 F.3d at 734.
Unlike the majority of courts, Oakland ignores the obvious distinctions between high school and college to justify its treatment of Corlett. But even under Hazelwood, Oakland's actions do not pass First Amendment muster because Corlett's journal is not "curricular speech" that it can regulate for "legitimate pedagogical concerns." Oakland relies on Curry v. Hensiner, in which the Sixth Circuit held that a school did not violate a fifth-grader's free speech rights when it would not let him "sell" candy cane ornaments with a tag explaining their Christian symbolism. 513 F.3d 570, 579 (6th Cir. 2008). The school could reasonably decide that it was not appropriate to expose children as young as first-graders to a particular religious point of view in the context of a school-wide interactive activity for children to learn about commerce. In fact, the school officials debated the question among themselves and acknowledged that the student did nothing wrong. That provides a stark contrast to a university relying on curricular speech doctrine to punish an adult who described his professor as "stacked" in a personal journal for an advanced level college English seminar. But Oakland wants the judge to treat the two situations the same way—except to approve punishment in the second.
Oakland's Claim of Unfettered Discretion to Discipline Students for Their Speech Ignores Both the First Amendment and Due Process
Oakland implies that any scrutiny of its actions in this case "would transform every student disagreement with a university's judgment on his or her coursework into a federal lawsuit." This is a power grab under the guise of a legal argument. Traditionally courts have afforded near-complete deference to a school's academic decisions on the theory that a judge does not have the expertise, say, to evaluate a professor's response to an essay on feminist perspectives in Jane Austen novels. Professor Mitzelfeld, the offended instructor, should have pursued pedagogical responses to her concerns about Corlett's work. For example, she could given Corlett a low grade to deter him from writing about his sexual fantasies if she believed his writing had no literary merit. That would have been suspect in this case because she had praised his previous sexually-themed journal entries, but in any case the Sixth Circuit has observed it is a "rare day" when a student can challenge course requirements on a First Amendment basis. Ward, 667 F.3d at 734. But instead of a low grade, a transfer to another class, a meeting with the department chair, or any number of other possible academic consequences for his class assignment, Corlett instead was found guilty of "unlawful individual activities." To be clear: instead of failing Corlett, the school declared his writing to be unlawful.
By answering an academic problem with a disciplinary response, Oakland erred. As a result, the judicial deference it seeks is unwarranted. Judges most certainly are trained to determine whether school administrators have violated a student's constitutional rights, as Oakland did here. Even assuming for the sake of argument that Hazelwood is applicable here, as Oakland contends, the university's power to punish student expression would only extend to speech that substantially disrupts the functioning of the school. See Hazelwood, 484 U.S. at 272. There is no allegation of a disturbance here that would meet that standard. The professor's objection is not a substantial disturbance—she complained using the procedures that the school set up precisely for that purpose. Corlett did not intend to publicize his journal, nor did he. The university's decision to remove Corlett summarily from class and then from school certainly created an uproar, but that is attributable not to Corlett's speech but the school's overreaction. Nor has Oakland tried to argue that it could suppress Corlett's speech because it was disruptive.
If the judge accepts either of Oakland's arguments, it will be a blow to free expression on college campuses. There is more to say about Oakland's attack on free speech, so be sure to visit the Torch regularly. Corlett's response to Oakland's motion to dismiss should be filed in the coming weeks. FIRE will be watching this case carefully and will report on any developments.
May 17, 2013
FIRE President Greg Lukianoff's op-ed in today's Wall Street Journal takes on the feds' unconstitutional "blueprint" for speech codes that makes nearly every student in America a sexual harasser, but Greg and FIRE aren't the only ones sounding the alarm. Nationally syndicated columnist Mona Charen's recent column ties this latest outrage to the 2011 "Dear Colleague" letter from the Department of Education that slashed due process protections for students accused of sexual misconduct including—guess what!—sexual harassment.
May 17, 2013
In an article for the Northern Kentucky Law Review titled "A Hostile Environment for Student Defendants: Title IX and Sexual Assault on College Campuses" (PDF), former FIRE legal intern Stephen Henrick reviews the ways in which university adjudications of sexual assault are deeply flawed. Ultimately, Stephen comes to this conclusion:
Quite simply, the law must recognize that a university (like any institution) has limits. Society must assign adjudication of sexual assault to civil and criminal court systems to ensure justice for all concerned.
Over the years, OCR has issued a series of publications that escalate complainant rights and mandate new procedures for resolving complaints in a way that does not sufficiently protect the due process rights of falsely accused students.
Stephen further warns of the danger of tying student disciplinary hearings to federal funding:
The net effect of the administrative enforcement scheme is that schools have an incentive to convict anyone who is charged with sexual assault or rape as a matter of risk aversion for the institution. As noted, OCR has the authority to revoke a college's federal funding if it finds the institution violated Title IX (although OCR has never exercised that power). For some schools, the sums at stake exceed half a billion dollars. Because OCR primarily cares about the complainant's rights, as evidenced by its guidances and enforcement opinion letters, conviction carries a much lower risk of administrative enforcement than acquittal.
Stephen's article is an important contribution to the field and adds to the discussion surrounding this crucial topic. You can read the full article on the Northern Kentucky Law Review website (PDF).