Trump administration should rein in Obama’s campus sex policies

As the Republican Congress attempts to scrutinize and rein in the actions of the Obama Administration, Freedom Caucus Chairman Congressman Mark Meadows (R-NC) recently recommended that President-elect Donald TrumpDonald John TrumpUPS, FedEx shut down calls to handle mail-in ballots, warn of 'significant' problems: report Controversial GOP Georgia candidate attempts to distance from QAnon Trump orders TikTok parent company to sell US assets within 90 days MORE repeal the Department of Education’s 2011 guidelines on campus sexual assault procedures.

In its first 100 days, the Trump Administration would be right to re-examine the Obama Administration’s policies on campus sexual assault, as they have created a deeply-flawed process for sexual misconduct investigations -- as well as an inherent male gender bias — at colleges and universities throughout the country.

The policy directive that Meadows is citing, known as the “Dear Colleague” letter, was an attempt by the Obama Administration to correct the past transgressions of higher education institutions for overlooking too many sexual assaults on their campuses. In 2011, the U.S. Department of Education Office of Civil Rights issued the 19-page "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.

While the Obama Administration was right to insist that more serious attention be paid to the issue, the Department’s directives in the “Dear Colleague” letter have drastically overreached with disastrous consequences for accused male students who have been denied their basic right to due process.

The “Dear Colleague” letter -- which has come under fire by constitutional law scholars, college professors, and elected officials alike -- aggressively dictates how colleges and universities handle sexual assault and sexual harassment on campus by laying out specific requirements that schools must adopt and utilize.

These “guilty until proven innocent” directives have caused schools to brand more male students as “rapists" based on the excessively low “preponderance of the evidence” standard -- as opposed to the “clear and convincing evidence” standard traditionally used in college disciplinary hearings.

Indeed, the Obama Administration’s “Dear Colleague” letter has resulted in sweeping regulatory changes, resulting in colleges and universities setting up their own campus rape tribunals to adjudicate cases of sexual assault.

Unsurprisingly, there has been a surge in colleges mishandling these investigations and wrongfully prosecuting male students for fear of losing federal funding. Because of these directives and the clear disregard for the due process rights of male college students, hundreds of young men are facing life-changing consequences for allegations that have not been proven and crimes that have not been committed.

Having represented dozens of accused male students on college campuses across the country, I have seen firsthand how these policies are ruining the lives of the wrongfully accused. At Colorado State University Pueblo, in a first-of-its-kind lawsuit filed against the U.S. Department of Education, a prominent college athlete was expelled during a sexual assault investigation conducted solely on hearsay -- even when the alleged victim herself insisted that no assault had occurred.

In another case at Drake University, a young man was wrongfully expelled in a case in which he had filed the same sexual misconduct charges against his accuser, but only the woman’s charges were investigated and only the male student prosecuted.

And at Clemson University, two students manipulated the campus’s sexual misconduct policies and used false rape allegations to prosecute, harass and defame a fellow student.

While the Obama Administration designates the “Dear Colleague” letter as a “guidance” document that merely interprets the requirements of Title IX, the consequences have proven otherwise. In actuality, the “Dear Colleague” letter advances new substantive rules and creates binding obligations on schools under threat of severe penalties, including the loss of federal funding.

As such, the Department violated the Administrative Procedure Act when they intentionally evaded the requisite notice and comment rulemaking while nonetheless enforcing the “Dear Colleague” letter as binding law.

Established in 1972, Title IX was meant to be a tool for fairness, not a weapon against rule of law. Nor was Title IX intended as a means for colleges and universities to micromanage students’ sex lives.

In order for due process to be restored on our college and university campuses, the Trump Administration must repeal the arbitrary and unconstitutional directives implemented by the Obama Administration’s 2011 “Dear Colleague” letter.

Andrew Miltenberg is a New York attorney who specializes in Title IX and campus assault due process.  He is currently engaged in several groundbreaking Title IX cases, including a first-of-its-kind lawsuit against the United States Department of Education.

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