May 2, 2017
In recent years, critics of the Obama administration's approach to sexual assault reporting have charged that colleges are denying the rights of the accused.
Conservative websites, primarily, in the last few weeks have focused two pending lawsuits against universities. The suits say that after allegedly bungled investigations into sexual assault accusations under Title IX of the Education Amendments of 1972, a University of Texas at Arlington student killed himself and a Cornell University student attempted to do so.
These two cases, among others, have been held up as examples of a flawed system that some say should require colleges to rely on a higher standard of evidence in investigating and punishing students for rape.
Advocates for sexual assault prevention in interviews expressed satisfaction with the current federal Title IX guidelines, and instead called for institutions that fumble with their procedures to be better versed and trained in the expectations, but said the federal guidance shouldn’t be scrapped.
Rejected Advances
Wayne M. Klocke filed a lawsuit in a federal court in Texas on behalf of his late son, Thomas Klocke, against the University of Texas at Arlington and a student, Nicholas Watson, who the lawsuit alleges sexually harassed the younger Klocke, who rejected Watson’s advances.
Watson later went to a university administrator, Heather Snow, an associate vice president of student affairs and dean of students, to file a complaint against Klocke, claiming Klocke had insulted his sexuality, the suit states.
The lawsuit asserts that Snow assisted Watson in drafting a complaint against Klocke, circumventing the university's procedures, and that she consistently refused to hear Klocke’s story.
Without any formal Title IX hearing, based solely on Watson's telling of events, Klocke was found guilty of violating the university's code of conduct regarding harassment, the lawsuit states. Even before university officials formally found him guilty, Klocke was barred from attending the class he shared with Watson, according to the lawsuit.
“Thomas was devastated by and distraught because of the actions and omissions that are complained of herein and their impact on his life and future. His scholastic performance, and participation and necessary interaction with fellow students in the course were severely impaired and his academic future and reputation were destroyed,” the suit reads.
Klocke killed himself June 2016, because, the suit says, the allegations were apparently so embarrassing.
Teresa Woodard Schnyder, a University of Texas at Arlington spokeswoman, provided a statement on the lawsuit: “This is a tragic situation and we express our deepest condolences to the family for their loss. The welfare of our students is our highest priority. Any loss is a heartbreaking one for our entire community. The university followed its policies and procedures. This is now the subject of a lawsuit in federal court; therefore, we are unable to respond further at this time.”
The university had not yet filed a response in federal court as of Tuesday.
In the Cornell case, a student sued in federal court in New York State, saying that he tried to commit suicide in April 2016. That student, who was identified as James Doe, a pseudonym, in the lawsuit, claims the university improperly suspended him, and indeed a university review panel reversed his initial, temporary suspension for allegedly sexually assaulting a woman.
The lawsuit states the woman, after hanging out with Doe all night, lay on his bed and “invited him” to join her. She was sexually aggressive, and when Doe rejected her and moved her off him, she punched him in the testicles.
The woman went to university officials instead claiming Doe had sexually assaulted her, the suit states, however, Cornell never seriously considered Doe’s countercomplaint against the woman.
John J. Carberry, a Cornell spokesman, declined comment, citing the fact that litigation is ongoing. Federal court filings do not include a response from Cornell.
Suicides make for compelling examples to many -- not just critics of Title IX enforcement.
One of the most notable sexual assault cases involving suicide is that of Saint Mary's College student Lizzy Seeberg, who took her life in 2010 after, she said, a University of Notre Dame football player raped her. The Education Department's Office for Civil Rights launched an investigation into Notre Dame's handling of the case, and in 2011, the university came to a resolution with the Education Department, agreeing to change its procedures surrounding sexual assault.
Critics of Title IX under the Obama administration blame what they view as colleges' overzealousness on a Dear Colleague letter issued by the U.S. Department of Education in 2011.
Many fought back against one particular element of the directive -- that institutions should rely on a lower standard of proof, preponderance of evidence -- in judging sexual assault cases. Though some had been using the higher clear and convincing standard prior to the 2011 Dear Colleague letter, most colleges and universities used the preponderance of evidence standard, meaning enough proof has been presented to show an incident likely occurred, said S. Daniel Carter, secretary of advocacy group SurvJustice. Carter estimated no more than 20 percent of institutions nationwide used clear and convincing, which some have pushed for in recent years. (Where the clear and convincing standard of proof requires a roughly 75 percent chance that the accused is responsible, preponderance of evidence, which is the standard used in civil cases, requires a 50.1 percent chance.)
Stop Abusive and Violent Environments, or SAVE, a nonprofit that represents students who say they have been falsely accused of a sex crime, and means to revise the Title IX law, released a recent report slamming the current processes on college campuses. SAVE has dubbed those investigations “kangaroo courts,” a common smear among those critical of them.
“The common denominator of all these cases is the inherent conflict of interest of college administrators, whose first loyalty is to maintain and promote a positive reputation of the institution,” the report reads, referencing cases that SAVE said were handled poorly. “In addition, college investigators lack adequate training in the collection, analysis and preservation of forensic evidence. Nor do campus adjudicators possess expertise in how to resolve complex ‘he-said, she-said’ cases. Finally, the strongest punishment that schools can deliver is expulsion.”
In the report, SAVE calls for a repeal of the 2011 guidance.
The language in that guidance isn’t flawed, but rather the problem is in the way that college administrators are trained in holding Title IX hearings and investigations, said Alison Kiss, executive director of the Clery Center.
Though some colleges had already evaluated and implemented proper procedures even prior to 2011, or instituted changes right away, some institutions -- those that were not informed of their obligations or had fewer resources -- weren’t quick to act, Kiss said.
“I can’t stress enough the importance that there’s training around these serious areas,” Kiss said. The law means to ensure fairness and impartiality, she said, and the 2011 guidance tried to “level the playing field.”
Historically, prior to 2011, colleges’ processes were slanted against the victim of rape, Carter said. SurvJustice provided input to the Obama guidance and continues to support it, Carter said. His organization seeks a balance for rights of both the accused and the victim.
The guidance has altered the “culture” of college campuses, sharpening administrators’ awareness of these types of issues, Carter said, and it shouldn’t be thrown out.
“It’s about fixing the guidance, it’s about educating the universities,” Carter said. “It’s unfortunate that some cases had some potentially tragic outcomes, but those schools are learning the hard way, you cannot cut corners when it comes to an issue this serious.”
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