The practice of campus assault due process advocates for the right of justice and due process of law for an individual accused of sexual misconduct at a college or university campus. In recent years, the practice of Campus Assault Due Process has become a burgeoning legal specialty, as a number of higher education institutions have been charged with denying accused male students the right to due process. As colleges and universities use their own internal disciplinary procedures to try students for claims of sexual assault, accused male students have claimed that they have been denied the right to a fair hearing, access to an attorney or the ability to question their accuser.
Contents
"Dear Colleague" letter
In a letter dated April 4, 2011, the Department of Education Assistant Secretary for Civil Rights Russlynn Ali issued what has become known as the "Dear colleague" letter to every college and university receiving federal funding addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. The 19-page "Dear colleague" letter contained guidance and directives on how schools are to address sexual assault and misconduct to comply with the Department of Education's view of Title IX. Among other things, the Dear Colleague Letter dictated that schools use a "preponderance of the evidence" standard and discouraged schools from allowing the parties to question each other. The Letter’s rationale behind this departure from standard criminal procedure is the assertion that unlawful sexual harassment may occur that is not a violation of the criminal law and mandated that schools, if appeals are provided, must allow both parties to appeal.
2016 Open Letter from 21 College Professors
In May 2016, 21 college law professors from Harvard, the University of Pennsylvania, New York and Stanford Universities, and several other law schools signed an open letter to state and federal lawmakers, college administrators, and officials at the U.S. Department of Education Office for Civil Rights alleging that the U.S. Department of Education unlawfully expanded how colleges must define and respond to allegations of sexual assault and harassment through its issuance of the 2011 “Dear Colleague Letter.”
The letters states: “We recognize that sexual harassment represents unacceptable conduct, and those found responsible should be appropriately sanctioned. Some of us have witnessed the injustices resulting from institutions that downplay or ignore sexual harassment on their campuses, and we commend OCR for taking a proactive approach to this problem. In pursuing its objectives, however, OCR has unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment, thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding.
"OCR needs to clarify which directives it considers to be guidance documents vs. regulations. Directives that are guidance documents need to be revised to eliminate provisions containing obligatory wording, unless these provisions are expressly supported by prior legislation or regulation. Directives that are deemed to be regulations need to be brought into compliance with requirements of the Administrative Procedure Act.”
Federal Court Reinstates Male Student's Title IX Lawsuit
On July 29, 2016, the United States Court of Appeals for the Second Circuit on July 29, 2016 vacated a district court decision and allowed a male student’s lawsuit against Columbia University to proceed. The student claims Columbia University violated his due process rights and discriminated against him based on his gender in a wrongful sexual misconduct investigation that resulted in his suspension.
The Second Circuit clarified the standard for accused students pleading a violation of Title IX, and suggested the possibility of a Title VII framework.
“[I]t is entirely plausible that the University’s decision-makers and its investigator were motivated to favor the accusing female over the accused male, so as to protect themselves and the University from accusations that they had failed to protect female students from sexual assault,” wrote Second Circuit Judge Pierre N. Leval.
The plaintiff is represented by attorney Andrew Miltenberg, who specializes in Campus Assault Due Process, and the appeal was argued by Philip A. Byler, of Nesenoff & Miltenberg, LLP.
"Civil Liberties on Campus" conference at Stanford Law School
In April 2016, Stanford Law School Constitutional Law Center held a “Civil Liberties on Campus” conference which included a panel discussion on the handling of sexual misconduct procedures at colleges and universities. Moderated by Mariano-Florentino Cuéllar, Justice of the Supreme Court of California, the panelists included Michele Dauber of Stanford Law School, Jacob Gersen of Harvard Law School, Deborah Rhode of Stanford Law School and prominent campus assault due process attorney Andrew Miltenberg.