The Ironic Results of the "Dear Colleague Letter" on the Observance of Title IX on College Campuses

NEW YORK, Sept. 13, 2013 /PRNewswire/ -- The following is a statement by Kimberly C. Lau, Esq. of Nesenoff & Miltenberg, LLP:

It is well-settled that Title IX of the Education Amendments of 1972 forbids discrimination on the basis of sex in education programs receiving federal funding.  In an effort to uphold the requirements of Title IX, on April 4, 2011, the U.S. Department of Education's Office for Civil Rights (OCR) sent a letter addressed to colleges nationwide mandating policy changes in the way that schools address matters of sexual harassment and sexual assault on campus.  This federal mandate has been notoriously referred to as the "Dear Colleague Letter."

In particular, the "Dear Colleague Letter" calls upon colleges to refrain from allowing accused students to cross-examine alleged student victims, prohibits accused students from appealing adverse rulings unless the accuser is provided an opportunity to appeal, and requires that colleges apply the "preponderance of the evidence" evidentiary standard in disciplinary hearings involving claims of sexual harassment or sexual assault.  The most disturbing part of the federal mandate is the requirement of lowering the evidentiary standard for college disciplinary hearings to the lowest evidentiary standard by which the accused may be adjudged. By applying the "preponderance of the evidence" standard, a disciplinary panel merely needs to determine that it was more likely than not that a sexual crime occurred before issuing a "ruling" of "guilty."

Under OCR's regulatory authority, schools that fail to comply with these mandates risk the loss of federal funding.  Thus, in an effort to avoid a lapse in critical federal funding, colleges across the nation have sought to adhere to the federal mandate in, perhaps, the only way they knew how.  Colleges have now resorted to administering kangaroo courts, failing to follow their own rules and regulations in the quest for truth of an accuser's allegations, taking a devil-may-care attitude when meting out the highest punishment of expulsion, and causing devastating, and life-changing, consequences for the accused's education, career and life.

So what happens when a college's "observance" of Title IX systematically affects only the male population of colleges in an adverse way? What happens when a college's efforts to adhere to Title IX become a violation of Title IX in and of itself?  Ironically, such a phenomenon has begun to occur or perhaps, has worsened to alarming levels) on college campuses nationwide (Vassar College, St. Joseph's University, and Xavier University, just to name a few).

The litany of litigation brought by the students who have been unfairly judged by their former colleges has not gone unnoticed, and, for good reason.  Now, students who have been unfairly judged and unfairly punished seek to hold colleges accountable, in a court of law, for failing to adhere to their own standards and for conduct that, although likely driven out of fear to comply with OCR's mandate, ironically, constitutes a violation of Title IX of the Education Amendments of 1972, which is the very federal statute that inspired the "Dear Colleague Letter" in the first place.  In the "Dear Colleague Letter," OCR insists that, "Public and state-supported schools must provide due process to the alleged perpetrator," yet, it states in the very next sentence, "However, schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant."  The outcome is that colleges have taken the guideline of "protecting the complainant" to an extreme and have facilitated a complete absence of due process for the accused students, who must now suffer the consequences of such "rulings" equivalent of those established by a court of law.

The call for reform for such unintended results of the "Dear Colleague Letter" is clear; In calling for the protection of alleged student victims of sexual assault and sexual harassment on college campuses, I am certain that in no way did the federal government intend for its mandate to obviate due process for the students accused of such sexual charges.

If you have a school disciplinary issue and would like to learn more about what your rights are, contact Kimberly C. Lau, Esq. at Nesenoff & Miltenberg, LLP: klau@nmllplaw.com; 212-736-4500

SOURCE Nesenoff & Miltenberg, LLP