600px-US-DeptOfEducation-Seal.svgBelow is my column this morning in USA Today on a campaign by the Obama Administration to pressure colleges and universities to reduce due process protections for students accused of sexual harassment and sexual violence. I have previously written a letter to my own university opposing some of these specific changes, though (like many schools) George Washington appears to be yielding to the pressure. I understand the concern of the Administration and the need to protect victims in this difficult process. We are all committed to maintaining a protective environment for both students and faculty. However, there are other ways to offer such protections without stripping away core due process protections in my view. My greatest concern is with the sexual violence cases because these adjudications will have a lifelong impact on the students (or faculty members) as well as consequences for collateral criminal proceedings. The column below is slightly expanded with material cut for space in the newspaper version.

Six years ago, prosecutors finally dropped rape charges against former Duke University lacrosse players accused of attacking a stripper. Perhaps the greatest offense against the players was not the false accusation by Crystal Mangum, but the assumption by Duke that the students and anyone associated with them were guilty. In the wake of this scandal, many schools learned a hard lesson from Duke’s bad publicity and sought to protect students and faculty from a future rush to judgment. However, school efforts to reinforce due process protections have run into opposition from an unexpected source: the Obama administration.

Last year, universities received a seemingly friendly “Dear Colleague” letter from the administration demanding that schools actually reduce due process protections in disciplinary hearings for accused students and faculty in sexual misconduct cases. If they did not, the letter warned, they could lose federal funding and face discrimination charges discrimination. The helpful “colleague” on the other side of the letter was Russlynn Ali, then assistant secretary for civil rights at the Department of Education. She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.”

Ali just resigned, providing an opening for the Obama administration to reconsider. That’s overdue because the interpretation of due process as a form of discrimination has shaken the academic community, which is deeply divided on whether to yield to the overt threats. It is a Faustian bargain for academics: Either strip students and faculty of basic due process protections or be declared discriminatory.

In the past, many schools have required significant evidence to find students or faculty guilty, often a “clear preponderance” or “clear and convincing evidence.” These standards require less than the criminal “beyond the reasonable doubt” standard but still a 75% or 80% certainty of guilt. The administration, however, demands that schools adopt the lowest evidentiary standard short of a presumption of guilt — “preponderance of the evidence,” just slightly above a 50-50 determination.

Because many of these cases involve the classic “he-said-she-said” situation, they come to the university as an even split based on opposing testimony. Add in the fact that many of these cases involve drinking, and the “preponderance” standard becomes a recipe for injustice. Even the slightest evidence can dictate the result and tends to favor conviction.

While this low standard is used in some civil cases, the accused is generally afforded other protections that the Obama administration directive strips from the accused. For instance, the directive discourages schools from allowing a student or faculty member to question the accuser. And schools have seized on that. Last month, a Georgia college student was expelled after rape allegations without the opportunity to confront the accuser or even, the student alleges, know the names of other witnesses in the case. After a judge halted the expulsion, the parties reached an “undisclosed resolution.”

The Supreme Court has insisted in criminal cases that the right to confront the accuser must be honored even when a court believes that the victim’s testimony is highly credible. The court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.” Yet, the administration insists that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.”

Adding to the unfairness is the fact that many schools like George Washington, where I teach, do not even allow for legal representation of students in these proceedings. Likewise, most do not account for potential criminal prosecutions. University investigations can undermine the rights of criminal defendants by forcing them into a process without other constitutional protections that the accused have in criminal court, such as the right to remain silent. Thus, evidence that would be viewed as improper, if produced by prosecutors in criminal court, can be admitted if generated first by a university.

Like other schools, George Washington does not even define the offense of “sexual violence.” Thus, a student can be convicted of an undefined offense under the lowest standard of proof without either confrontation or active counsel. Worse yet, the lesser offense of “sexual harassment” is defined as including the undefined “sexual violence” — adding a mind-numbing circularity.

Equally disturbing is the common rationale cited by those demanding these changes: money. As recently stated in an article by the respected Chronicle of Higher Education, the lowering of the burden of proof “[f]irst . . . protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money.” This common rationale puts money squarely before the merits in the priority for discussion.

The Obama administration has created the perfect Potemkin village — a legal façade with the outward appearance of a due process without its substance. Weighting the system to guarantee more convictions is not combating sexual violence or harassment. It is achieving a statistical success rather than the harder process of assuring justice for both alleged victims and the accused. Students are not statistics and deserve more than the equivalent of a coin toss with two lives in the balance.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

Published December 6, 2012


  1. First they came for….. Then no one was left….

    Words and meanings edited out, forgotten or just trampled….

    Obama….. Protecting civil liberties since….. Bush left office….. One banana, two banana……or is that banana one and banana two…. (TV show for the uninformed)….,

    This policy reeks….. And to think Nifong might still have a job if this policy was still in place…..

  2. “VP Biden on Campus Sexual Assault: “It’s Quite Simple. No Means No”

    ABC News’ Karen Travers and Tahman Bradley report:

    Vice President Biden and Secretary of Education Arne Duncan spoke at the University of New Hampshire yesterday to bring attention to the high rates of sexual assault and violence committed against women on college campuses across the country.

    The Obama Administration also released new guidance to help schools at all levels better understand their obligations under federal civil rights laws to prevent and respond to sexual assault on campus.

    “Rape is rape is rape, and the sooner universities make that clear, the sooner we’ll begin to make progress on campuses,” Vice President Biden said.

    Biden told an audience of about 600 that when it comes to sexual abuse, it is quite simple: “No means no.”

    “No means no, if you’re drunk or you’re sober,” he said. No means no if you’re in bed in a dorm or on the street, no means no even if you said yes at first and you changed your mind.”

  3. The root cause here is that people see examples of systems failing and automatically assume the system must be a failure and the solution is to replace the system. That seems logical unless you consider that the replacement will have its own unique failures. They may even be worse than the ones that caused the change in the first place. Instead each failure should be examined to see where it might have been prevented and that information feed back into the system.

    There are plenty of examples of the current system failing victims but the answer is not to overturn the entire process and the presumption of innocence.

  4. Bettykath – I don’t recall any due process for students when I was in school. The teacher or principal ‘knew’ who was guilty & took appropriate action. No reviews & no appeal. Luckily for me I was a “good” kid (meaning my mom was on the PTA and I never got caught) so naturally I was never guilty like those “bad” kids who were always guilty.

  5. “The guidance from the department of education does not create new laws or regulations, but tries to clarify issues that college administrators said had caused confusion and, according to NPR’s investigation, often left victims of sexual violence feeling they got little protection.

    The NPR investigation found that colleges almost never expel men who are found responsible for sexual assault and that often, as a result, it is the victim who drops out of school. The guidance explains the responsibility of schools under Title IX, a civil rights law best known for requiring equality in men’s and women’s sports, but which also says schools have a responsibility to end sexual harassment, including sexual assault.” NPR

  6. QUOTE “She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.””

    Since WHEN did schools get more police powers than the police!?!?

    And HOW does taking away rights, ever make this country better???

    I guess they want to drag out the National Guard and maybe shoot some more students, like Kent State & Jackson. Or maybe have them bayoneted like New Mexico students…(& news people).
    That went over well with the American public….

  7. Frankly.

    You follow the rules at the fear of reprisal…..you change the rules when you can’t win with the rules that are in place…..been done many times….. Maybe this is an argument for returning to the days of gender separate campus’s….. If no means no…. Even if you’re in bed and doing it….. After a drunken binge….. Even more support for separation…. There are points that each needs to take responsibility for there own actions….. And not scream rape….

  8. Having defended a few of these cases, I can say the schools can do quite a bit to prevent these “he said-she said” situations from occurring in the first place. As JT says, most sexual misconduct cases are fueled by alcohol and there is much a school can do to stop colleges from becoming relentless Octoberfests. The first step is alcohol education for incoming freshmen with an emphasis on the lowering of inhibitions the drug produces. Second, the schools can simply ban the use of alcohol on their grounds and in the dorms. Since the legal drinking age is 18 in most states this shouldn’t be much of a problem since at many schools upperclassmen no longer live in dorms. Third, the schools can institute a comprehensive program of sex education and the law for incoming freshmen. While today’s kids are all too familiar with the allure of sex, most have very little idea as to the consequences of pursuing unwanted sexual advances. Finally, the schools can institute a reasonable system of disciplinary actions to enforce its standards of conduct and publicize it along with the punishments (which few do except in the never-read-until-it’s-too-late university manual). I’m not sure it has to encompass all the due process protections that JT advocates ( it is not a criminal case, after all, and one has no right to attend any university) but the right to be represented seems fundamental as is the right to confront the evidence against them. i think a clear and convincing standard of proof fits the bill as does insuring confidentiality of the proceeding.

    These are difficult cases to decide but there are some genuine psychopaths out there preying on young women and there are some young women motivated by shame or offended feelings to make false allegations. Deciphering between the two is hard to do, but it’s part of the job of the school and it would seem a good blueprint to use is the system that’s served us well in the past.

  9. “What does a student need to prove to hold a school liable for damages for sexual harassment and assault under Title IX?

    When students sue their schools under Title IX to get monetary damages for pain and suffering resulting from sexual harassment, they must prove that school officials actually knew about the harassment and were deliberately indifferent to it and that the harassment was so severe, pervasive, and objectively offensive that it limited the student’s educational opportunities or benefits. When a student-plaintiff seeks to hold a school liable for monetary damages for its response to a sexual assault, the student-plaintiff must prove that the school’s response, or lack thereof, was unreasonable in light of known circumstances (see Davis v. Monroe County Board of Education). According to the decision in Kelly v. Yale University, Civ.A. 3:01-CV-1591, 2003 WL 1563424 (D. Conn. 2003), strict adherence to school policies does not guarantee the school immunity under Title IX.

    When a student-plaintiff seeks to hold a school liable for failing to prevent sexual assault or for fostering a sexually hostile environment, he or she must prove that the school had actual notice of the harassment or of a substantial risk of sexual harassment. Some courts have required actual notice of a specific risk (e.g., prior complaints about a specific individual or prior threat directed toward a specific student), while other courts have required only actual notice of a general risk (e.g., complaints about an athletic team or fraternity rather than a specific individual).
    What can the U.S. Department of Education do?

    The U.S. Department of Education Office of Civil Rights can find a school in violation of Title IX for sexual harassment and assault. OCR has issued a policy guidance that explains a school’s responsibilities under Title IX to recognize and effectively respond to sexual harassment of students. A student may file an administrative complaint with OCR under Title IX. OCR will investigate the complaint to determine whether the school violated Title IX.” American Association of University Women website

  10. There is a reference,brief, in the article that this person Ali whatshername quit. Why? Over this issue? Who replaced her? When? What do we expect from newguy/gal? How high up in the “Obama Administration” is this person who has now quit? Did someone higher u in the Administration push her to quit?
    The election is over. Having Obama in bed with the bedwetters is a bit much here.

  11. I should have added that the suspension of the crew team was later overturned by the administration, but not without the school being truly embarrassed by public reaction to its OVERREACTION.

  12. This is a slippery slope if there ever was one, as Mespo points out above. Often there are no witnesses, and I have worked on enough cases of false allegations to be surprised at nothing any more. On top of that, there are clever predators who make sure their own tracks are covered in case there are allegations. This is a legal and ethical minefield.

    Several years ago, a first grader was suspended in North Carolina because the teacher saw him give a little girl a peck on the cheek. He was accused (by the teacher) of sexual harassment. The little girl was not consulted on what she thought of it.

  13. OS, This is not a criminal trial. They are using Title IX to work out grievances and try to provide safer campuses.

  14. “Last week, the Department of Education’s Office for Civil Rights (OCR) released a “Dear Colleague” letter to the nation’s schools, colleges, and universities clarifying that sexual harassment of students, including acts of sexual violence, are prohibited under Title IX. Although commonly associated with athletics, Title IX forbids all sex discrimination in educational programs or activities that are operated by recipients of federal financial assistance. In explaining its decision, OCR said that “the sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.”

    The chilling statistics on student sexual violence underscore OCR’s desire to address this important issue. One report found that one in five college women are victims of completed or attempted sexual assault and that, in 2009, college campuses reported nearly 3,300 forcible sex offenses.

    In its letter, OCR provides reminders and advice to schools about how they can comply with Title IX and protect students from sexual harassment and violence:

    Every school that receives federal funding must do three things: place a public notice of nondiscrimination in its facilities, designate at least one employee as the school’s Title IX compliance coordinator, and adopt and publish grievance procedures that provide for a prompt and equitable settlement of complaints.

    Title IX protects students in connection with all the academic, educational, extracurricular, athletic, and other programs at a school, whether they take place in the school itself or at an event sponsored by the school. If a school knows or reasonably should know about harassment in these venues, Title IX requires immediate action to stop the harassment, prevent its recurrence, and address its effects.

    Schools should provide training on identifying and reporting harassment to any employee who is likely to witness it, including teachers, school administrators, counselors, and health personnel.

    Title IX does not require schools to adopt policies specifically prohibiting sexual harassment. However, a school’s anti-sex-discrimination policy violates Title IX if, because of a lack of a specific policy, students are unaware of what kind of behavior constitutes prohibited sexual harassment.

    Even if the student or school reports the harassment to law enforcement, the school is not relieved of its obligation to conduct an independent Title IX investigation. All Title IX complaints must receive a “prompt, thorough, and impartial” investigation by the school.

    The AAUW website offers excellent tools for students, administrators, parents, or anyone interested in making campuses safer for women” AAUW

  15. What Frankly, Mespo, Gene and AY said, but mostly leaning to Frankly because of this:

    “The root cause here is that people see examples of systems failing and automatically assume the system must be a failure and the solution is to replace the system.”

    Frankly identifies the heart of the matter. I particular this issue is really about certain school administrators not taking sexual abuse and harassment charges seriously and in the alternative as with Duke not following the evidence. We see a similar problem in the military today with rape cases where the woman is punished, rather than the perpetrator. The problem is therefore those who are charged with dealing with these issues are failing in their duty to enforce the rules that exist. One doesn’t redress this by lowering the standards of evidence, but by chastening/punishing those not doing their duty.

  16. If it a state school that is demonstrating to its students and to the world the Soviet justice system then a student defendant could put them in federal court and allege that the school is depriving him/her/both of certain civil rights. The school administrator goody two shoes know it all perp is among those things a “state actor”. By punishment, or threat thereof, the state actor is depriving the student of his rights to property, to liberty, to due process of law.

    Expelling some kid for a sex act is defamation. That is a separate legal notion and proceeding.

    The ACLU needs to get involved. There is nothing on earth worse than some holyer than thou school jerk who has a grudge against a kid and puts him through a monkey trial. The kids need to get their stuffed monkeys organized and demonstrate. That so called civil rights exec from the government needs to get a job in Red China.

    Back when I was in college this Dean jerk would drive by the dorm on a regular basis to inspect the lawns and he would stop to pick up beer cans. We made sure that he had some to pick up. One day three people mooned him from the upper outside balcony. He claimed that one of them was a guy named Jim. At first he said he only saw their rears. So a fraternity guy who went on to law school demanded a “line up”. When the school ignored that three of us did the line up at the dean’s house as we drove by in three golf carts. Of course all he saw was three butts but he claimed once again that one of them was Jim. And we had Jim on duty at the front desk of the library with a cast of the whole frat house while all that happened. So then what we did was put posters up with a depiction of the dean and three buts and a hole in the ground and the caption said Dean Harlan dont know an arse from a hole in the ground.

  17. At the time of the Duke case I was working a case involving a civil lawsuit @ a strip club. One of my clients was an insurance company that had a niche insuring businesses that no one else wanted to insure. The case involved a bouncer literally throwing out a customer who was touching a stripper. In the course of the interviews all the strippers told me this Duke case was fishy. This was early on when virtually the whole country had convicted the players. All of these women make money @ private parties. And all stated you NEVER go to a function like the one @ Duke w/o @ least one bodyguard..NEVER.

    As several here have stated, the problem is booze. Women could learn something from these strippers. When there’s booze and testosterone you got to be smart. I AM NOT SAYING IT’S THEIR FAULT. I am saying personal responsibility is more important than a nanny govt. trying to rewrite the constitution to pander to a voting block. As I’ve stated previously, all parents have your daughters read “The Gift of Fear” prior to going off to college. The knowlege and skills learned there will serve them better than this Administration. “Knowledge is power.” And some self defense courses is money well spent. Although, you don’t need a course to know a man’s most sensitive area!

  18. I was talking with a girl that’s a Teacher and she said that title IX is outdated in today’s society. It is an embarrassment to people. Thank God she teaches at a Christian School where the young girls are taught how to be ladies.

  19. People need to work out their own salvation. Nature does not have to strip.nature is already naked. The world is one big strip club that never has to strip filled with clothing bowing people not judging themselves. Do process is a legal term. God who made what we use will sort things out. Once to live, and then the judgment. It is a terrible thing to fall into the hands of a living God when whoever has done terrible actions having bad intentions.

  20. Freedom, a girl is a teacher? and she’s teaching other girls to be ladies?

    12 year old girls belong in school as students, not teachers.

    This school needs some women who teach the girls how to become independent, well-educated young women.

  21. Mike S:

    You raise some good points but I eschew the idea of the “hot issue.” When I started my practice, the big issue in criminal law was “rape shield” laws promoted by women’s advocacy groups that were used to protect alleged victims from disclosing past sexual dalliances (thus overcoming the so-called “slut defense” to sexual abuse cases). The confrontation clause took a direct hit with those misguided laws that were later ameliorated with court interpretation on 6th Amendment grounds.

    Some time after that, driving under the influence became a hot button topic as MADD, SADD (and any other astroturf group the insurance companies could muster) paraded before both court and news camera decrying the so-called leniency used to punish DUI offenders. This resulted in wildly escalating punishments and mandatory sentences involving the most technical of charges (e.g., the guy who has too many and decides to sleep it off in his car forgetting to take the keys out of the ignition).

    When you take discretion out of the fact finder’s hands and subject them to pressure from agenda-driven interest groups (James Madison called it the rise of factions) you invariably get pressure on our Constitutional protections. That’s what is happening here as everyone assumes a less than Draconian disposition means the system is broken. Sometimes it means the facts require a middle ground approach. The ancient Greeks used to honor the “Golden Mean.” Today some think it’s some sort of compromise of principles. Smart people in Athens back then.

  22. Frankly 1, December 6, 2012 at 8:05 am

    Bettykath – I don’t recall any due process for students when I was in school. The teacher or principal ‘knew’ who was guilty & took appropriate action. No reviews & no appeal. Luckily for me I was a “good” kid (meaning my mom was on the PTA and I never got caught) so naturally I was never guilty like those “bad” kids who were always guilty.
    Me, too. And the “bad” kids were always blamed even it the guilty party was one of the “good” kids. Well, it’s still happening but the stakes are much higher.

    Did you read the articles to which I posted links?

    In one they bring private prison contractors into the high school (Arizona). “Everybody is locked in, and then they bring the dogs in, and they are teamed with an administrator and go in and out of classrooms. They go to a classroom and they have the kids come out and line up against a wall. The dog goes in and they close the door behind, and then the dog does its thing, and if it gets a hit, it sits on a bag and won’t move.”

    In the other school (Mississippi),

    “In Meridian, when schools want to discipline children, they do much more than just send them to the principal’s office. They call the police, who show up to arrest children who are as young as 10 years old. Arrests, the Department of Justice says, happen automatically, regardless of whether the police officer knows exactly what kind of offense the child has committed or whether that offense is even worthy of an arrest. The police department’s policy is to arrest all children referred to the agency.

    “Once those children are in the juvenile justice system, they are denied basic constitutional rights. They are handcuffed and incarcerated for days without any hearing and subsequently warehoused without understanding their alleged probation violations.”

  23. Interesting that whenever women call for balance and equality that they are accused of being anti-male. That’s not the case. We want the kinds of opportunities that males have always had. Sometimes things aren’t done perfectly, but male domination sure isn’t perfect either. As to the topic of this thread, we just want men to be held accountable for their bad behavior in the hopes that they will stop the bad behavior.

  24. bettykath, I have a daughter and I want every opportunity for her. But, she was taught that in this world noboby gives you nothing, you have to earn it or take it. “Life’s tough, wear a freakn’ helmet” Dennis Leary

  25. Bettykath,

    Any state that has an SRO program does the same as in Arizona and Mississippi, depending on the state’s constitution and any pertinent legislation. Or the willingness of the District’s Amin to allow it. School’s without SROs will also call police over recalcitrant children, with the resultant use of a hammer.

    From an ACLU white paper “60 percent of high school teachers reported armed police officers stationed at their schools, and in 2005 nearly 70 percent of public school students between the ages of 12 and 18 said police officers or security guards patrol their hallways.”

  26. “Why I won’t be cheering for old Notre Dame”

    Posted by Melinda Henneberger on December 4, 2012 at 11:02 pm



    “I’ve spent months researching these cases and written thousands of words in the National Catholic Reporter about the whole shameful situation, some of which you’ve likely heard about: Two years ago, Lizzy Seeberg, a 19-year-old freshman at Saint Mary’s College, across the street from Notre Dame, committed suicide after accusing an ND football player of sexually assaulting her. The friend Lizzy told immediately afterward said she was crying so hard she was having trouble breathing.

    Yet after Lizzy went to the police, a friend of the player’s sent her a series of texts that frightened her as much as anything that had happened in the player’s dorm room. “Don’t do anything you would regret,” one of them said. “Messing with Notre Dame football is a bad idea.”

    At the time of her death, 10 days after reporting the attack to campus police, who have jurisdiction for even the most serious crimes on school property, investigators still had not interviewed the accused. It took them five more days after she died to get around to that, though they investigated Lizzy herself quite thoroughly, even debriefing a former roommate at another school with whom she’d clashed.

    Six months later — after the story had become national news — Notre Dame did convene a closed-door disciplinary hearing. The player testified that until he actually met with police, he hadn’t even known why they wanted to speak to him — though his buddy who’d warned Lizzy not to mess with Notre Dame football had spoken to investigators 13 days earlier. He was found “not responsible,” and never sat out a game.

    A few months later, a resident assistant in a Notre Dame dorm drove a freshman to the hospital for a rape exam after receiving an S.O.S. call. “She said she’d been raped by a member of the football team at a party off campus,” the R.A. told me. I also spoke to the R.A.’s parents, who met the young woman that same night, when their daughter brought her to their home after leaving the hospital. They said they saw — and reported to athletic officials — a hailstorm of texts from other players, warning the young woman not to report what had happened: “They were trying to silence this girl,” the R.A.’s father told me. And did; no criminal complaint was ever filed.

    “Lizzy’s aunt, Katie Garvey, who met her husband at ND, has come to believe that even if the facts of these cases were “blasted from every news source in the country, the average Notre Dame fan would still find a way to discount it.” Part of her is actually kind of glad for them, that “they don’t have the burden of knowing,” even if “their resistance to knowing is absolutely remarkable.”

    In South Bend, naturally, knowing is particularly burdensome: “I’ve watched almost every game this season and there’s not a single time that I don’t feel extreme anger when I see [the accused] on the field,” said Kaliegh Fields, a Saint Mary’s junior who went with Lizzy to the police station. “Once I start thinking about the people who put the school’s success in a sport over the life of a young woman, I can’t help but feel disgust. Everyone’s always saying how God’s on Notre Dame’s side,” she added. “And I think, ‘How could he be?’ “

  27. Why didn’t you mention the lawsuit against GW that was settled for over a million dollars because it was found that the school had implemented sexist policies in their judicial system? Males were found to have been treated unfairly when accused of any wrongdoing. George Washington’s approach to liabity, specifically in the area of sexual assault, was seen as the reason for the bigotry. The administrator responsible for the policies was promoted. The lawsuit originally started because a student was expelled for rape, without any evidence against him.

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