Colleges and universities are finding themselves in murky legal situations as they try to fairly balance the rights of sexual assault accusers and those who have been accused, the Wall Street Journal reports.
In 2011, institutions nationwide rewrote policies regarding sexual assault, lowering the burden of proof and increasing penalties, after an Education Department directive required schools to act if sexual violence or harassment was indicated by a "preponderance of evidence." It also required schools to resolve complaints within 60 days of filing.
But since January 2014, men have brought more than 30 lawsuits against colleges and universities, alleging the institutions violated their due-process rights in the handling of sexual-assault cases, according to the advocacy group A Voice for Male Students.
Many schools interpret "preponderance of evidence" to mean a more than 50% chance of guilt, compared with the previously typical 75% chance of guilt used for the "clear and convincing evidence" standard.
"Preponderance of the evidence is used because it puts both parties on an even playing field," says Alexandra Brodsky, co-founder of student advocacy group Know Your IX. It is the same burden of proof used in civil courts.
Sundance documentary focuses on college sexual assault, Title IX violations
The Obama administration and women's advocates say the 2011 directive is working. They point to a rise in reports from 2010's 2,984 reports of forcible sexual offenses at schools with residential campuses to 2013's 5,098 reports.
There has also been an explosion of Title IX investigations. The Education Department is currently investigating 105 institutions for improper handling of sexual assault cases, compared with just 14 at the end of 2011.
"The pendulum has swung, not so inappropriately, toward trying to counterbalance processes that made it very difficult for victims to come forward," says Larry Moneta, Duke University's VP of student affairs.
Currently, Duke is facing a lawsuit from a student who was found responsible for sexual assault by a panel and now alleges wrongful expulsion. In the past five months, St. Joseph's University, Amherst College, and Swarthmore College have each settled with former students who sued the schools after being accused of sexual assault.
The Education Department does not track the number of students accused of sexual assault bringing Title IX complaints.
School officials say they struggle to sort through a multitude of—at times conflicting—federal laws when investigating reports of sexual assault. They also say it is difficult to determine whether what occurred was drunken sex or assault and how to determine whether someone was sober enough to consent.
"I'm not saying Title IX is the only topic talked about among colleges and presidents, but boy is it the biggest," says Peter McDonough, the interim general council for American Council on Education.
Civil-liberty and Greek organizations both are lobbying Congress to review higher education adjudication systems or require police involvement. In February, Sen. Claire McCaskill (D-Missouri) introduced a bipartisan bill that would standardize campus reporting practices and require more transparency.
"I find it staggering, absolutely staggering, that these parallel judicial systems have been built up in universities," says the father of the student suing Duke, adding, "They have considerable power to destroy a person's life" (Bauerlein, Wall Street Journal, 4/10 [subscription required}).
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