The Death of Campus Due Process

How universities eliminated the rights of students accused of sexual assault

[This article is part of the nine-part series, “The Death of Campus Due Process,” which examines the policies used by colleges and universities to investigate allegations of sexual assault.

The series examines the civil case, “John Doe v. Brandeis University.” The case concerns the college’s investigation into whether a former Brandeis student committed sexual assault against his ex-boyfriend during their relationship.

These articles might not make sense if they are read out of order. Here is the table of contents for this series. I highly encourage readers to take their time reading these posts, as many are long and detailed. I also recommend reading the hyperlinked primary-source documents to learn more about the case.] 

Introduction

In recent months, American citizens have been engaged in a national discussion about sexual assault and sexual harassment following in-depth investigative reporting into the misconduct of powerful men in politics, the news-media and Hollywood.

Stories about the behavior of Donald Trump, Harvey Weinstein, Al Franken, Charlie Rose, and Matt Lauer, among others, have prompted a dialog about sexual misconduct in the workplace.

The severity of the allegations against each of these men is different. Each man deserves to have the allegations against him to be considered individually, as opposed to having the public reach a collective judgement for all men who are accused of sexual misconduct through the press.

The public should also judge each of the accused based upon the total weight of evidence against him. But all of their stories share the common theme of several women coming forward with allegations of sexual misconduct.

As employers, political parties, and other institutions begin considering changes to their workplace policies, they will have to define the vague and potentially broad concepts of sexual harassment and sexual assault.

Another difficult, if not impossible, challenge concerns how to create workplace sexual harassment policies that ensure victims feel comfortable coming forward, deliver punishments that are proportional to an employee’s misconduct, and provide due process for the accused.

As our country engages in this difficult, but necessary, discussion, I believe we could gain a lot by studying a related subject, the debate over the ways in which colleges and universities investigate and punish sexual harassment and sexual assault.

Over the past decade, colleges and universities across the United States have taken steps to make it easier to find students guilty of committing sexual assaults against fellow students. These changes have been adopted in response to a “Dear Colleague” letter written by an Obama administration official in 2011, which interpreted the responsibilities of colleges and universities under a federal civil rights statute.

Supporters of this letter believe that its guidance encourages colleges and universities to adopt policies that protect victims of sexual violence and allows victims to continue to access higher education. Opponents of the letter believe that its requirements eliminate essential due process rights for students accused of sexual assault.  

Last year, the Trump administration withdrew this Dear Colleague letter. That decision was just one of many ways the new administration has reversed Obama-era policies.

I believe the debate over how colleges and universities handle allegations of sexual assault is one of the most important and under-covered policy stories of the past decade.

Colleges and universities have difficult, and incredibly important, decisions to make regarding how they define, investigate, and punish sexual assault.

Consider the following scenario.

During a meeting with a college administrator, a student says they have been sexually assaulted by a fellow classmate from the same college.

What should the administrator do? They could encourage the student to file a report with the local police, which could lead to criminal charges against the alleged perpetrator. But what obligation should the school have above and beyond the role that law enforcement might play?

The school could conduct its own investigation to determine whether any school rules have been broken. But how should a school investigate such a sensitive matter? Are students and professors on college disciplinary panels qualified to adjudicate these kinds of criminal allegations? Should the school take steps to make sure the alleged victim and the accused don’t come into contact in the classroom, university housing, or on the campus as a whole? If so, when should these steps be taken?

There are no easy answers.

A student from Brandeis University, a private Massachusetts college, identified in legal documents as an anonymous “Jon Doe,” sued Brandeis, claiming the college had conducted an unfair and illegal investigation into whether he had committed sexual assault against his former boyfriend during their relationship.

John Doe v. Brandeis University provides clear examples of the challenges faced by colleges and policy-makers in determining how best to handle allegations of sexual assault on college campuses. The next several articles will examine this case in detail and analyze how it can inform our national debate about how colleges and universities should respond to allegations of sexual assault.