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Campus Sex Brings Title IX to Court

Former UVA student sues the administration over law interpretation.

On Aug. 23, 2013, two students at the University of Virginia had a chance meeting that turned into a hookup. It’s likely the young man thought little of it as he continued in law school — that is until over a year and a half later. In March 2015, the female student filed a complaint claiming she was too intoxicated to give consent to sex. Repeat this thousands of times all across the nation, and you can see the deeper problem.

Her complaint was not adjudicated until January of this year, when the retired judge hired by the university found that the male we’ll call John Doe was guilty of not getting “effective consent,” but only based on a slight preponderance of the evidence. If there were a higher legal standard, the judge wrote, she may have come to a different decision. In the meantime, Doe missed out on his scheduled 2015 graduation (and a job offer dependent on his leaving UVA with his law degree), was ordered to undergo four months of counseling, and is not allowed back on campus.

Doe finally received his law degree this year from UVA and is putting it to good use: He’s the plaintiff in a lawsuit demanding the Department of Education and its Office for Civil Rights (OCR) vacate the 2011 “Dear Colleague” letter from former Assistant Secretary for Civil Rights Russlynn Ali, a letter that Doe charges was improperly used to set policy without public input. While Ali’s letter claims in a footnote that it complies as a “significant guidance document” under a Bush-era dictate from the Office of Management and Budget (OMB), Doe v. Lhamon claims the 19-page letter, as well as supplemental guidance from the OCR, does not comply.

In fact, the OMB document notes, “Agencies also are encouraged to consider observing notice-and-comment procedures for interpretive significant guidance documents that effectively would extend the scope of the jurisdiction the agency will exercise, alter the obligations or liabilities of private parties [emphasis added], or modify the terms under which the agency will grant entitlements.” While the “Dear Colleague” letter asked for feedback, it was only immediately made available to those with knowledge of the document, not necessarily interested parties or the public at large.

Prior to the “Dear Colleague” letter, colleges and universities generally set their own standards on such cases, most using the more strict “clear and convincing evidence” standard as well as allowing cross-examination of witnesses. It was more like a regular trial, which was proper since the punishment often meant expulsion from the institution. Since Ali’s letter created the rules of the road, though, institutions receiving federal funding have been all but ordered to comply with the OCR directives, including the far lesser preponderance of the evidence standard that Doe charges is “arbitrary, capricious, and an abuse of discretion.”

Since Doe is not yet a member of the Virginia Bar, he is getting assistance from the Foundation for Individual Rights in Education, better known as FIRE. Noted their executive director Robert Shibley, “Following the law isn’t optional, and discontent with the 2011 ‘Dear Colleague’ letter is widespread and well-documented. Hardly a week goes by without new headlines pointing to the failure of the status quo on campus.”

Jazz Shaw at Hot Air had another take, though, writing, “[N]either the concept of justice nor the safety of the community was served. First, let’s say Doe was innocent. In that case, he was railroaded by this non-legal body and his career was ruined. But what if he was actually guilty? His ‘punishment’ was to be banned from campus and deal with a two year delay in getting his law degree. If the guy is an actual rapist, they turned him loose on society to prey on other young women.” Neither option is a palatable one.

Of course, we warned last week, “The best defense against most instances of sexual assault begins with personal responsibility. First, if you are a parent, and your coed is not committed to abstain from sex and alcohol use, make sure your sons and daughters understand what constitutes ‘consensual sex.’ Second, no matter what their attitudes about sex might be, they must avoid making poor choices that increase their exposure to predatory sexual encounters — which on college campuses most often begin with alcohol/drug impairment.” Because the process is now becoming more of a “he said/she said” kangaroo court where the accuser is guilty until proven innocent, the best bet is just to stay away from the scene altogether.

Have we mentioned that the world needs skilled tradespeople and entrepreneurs that do well without setting foot on a college campus?

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