Dear Colleague Letter on Sexual Violence: Surveying the Damage
November 28, 2016
On April 4, 2011 the Department of Education Office for Civil Rights released its ground-breaking Dear Colleague Letter (DCL) on sexual violence. From the very beginning, the DCL was controversial, both because it imposed significant new requirements on colleges, and because it was released without undergoing public review and comment, as required by the Administrative Procedure Act. On August 24, 2011, SAVE wrote a letter to then Assistant Secretary for Civil Rights Russlyn Ali expressing our concerns. SAVE never received a response from the Department of Education.
Five years later, it is incumbent on Republican and Democratic policymakers to assess the impact of the DCL. These are 10 ways in which the DCL has been found to have deleterious effects:
HARMFUL TO VICTIMS OF SEXUAL ASSAULT
- Trivialization of Rape: The DCL states, “Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.” Defining sexual assault as a form of harassment has served to broaden and dilute the meaning of sexual assault. Ever-expanding definitions of sexual harassment have reached the point of absurdity, including things like micro-aggressions, ribald humor, and even “unwelcome flirting” at Goucher College in Maryland. Based on these inflated definitions (and a low response rate), a recent survey reported that 82% of students at Ohio University were victims of sexual misconduct. Such expansive definitions trivialize the meaning of rape, long viewed as a reprehensible and heinous crime, and serve to marginalize true victims.
- Shortchanging True Victims: Universities lack the resources, expertise, and administrative independence necessary to investigate and adjudicate felony-level crimes. A recent example is a string of sexual assaults reported at Utah State University. In 2014, five different women alleged they had been sexual assaulted by Jason Relopez. But the university didn’t actively pursue their complaints. A year later, Relopez raped student Victoria Hewlett. She reported the incident to police, who investigated and arrested the man. He was later sentenced to one year in jail. Two weeks ago Hewlett filed a lawsuit, alleging Utah State University failed to follow OCR policies to investigate the previous sexual assault claims and determine whether there was a continuing threat to the safety of campus.
- Credibility of Future Victims: Recently a jury in Charlottesville, VA awarded $3 million to former UVA dean Nicole Eramo, arising from an article in Rolling Stone magazine that featured the claims of Jackie Coakley, who claimed she had been gang-raped by seven men in a college fraternity house. Such high-profile incidents are certain to cast a cloud of incredulity over future rape victims.
HARMFUL TO THE WRONGFULLY ACCUSED
- Injustice to the Wrongfully Expelled: Following the release of the Dear Colleague Letter, colleges revamped their policies and procedures to comply with the new requirements. Thousands of accused students were expelled, sometimes wrongfully. The effects of the decision on students’ mental health, social interactions, and career prospects are severe and long-lasting. These students have filed hundreds of lawsuits against the colleges. As of July 2016, 30 judges had issued decisions siding with the accused student, often expressing their concerns with lack of due process employing strong judicial language. These lawsuits represent a significant new liability risk for colleges and universities.
HARMFUL TO BOTH SEXUAL ASSAULT VICTIMS AND THE WRONGFULLY ACCUSED
- Victim-Centered Investigations: In recent years, colleges have begun to implement a new investigational approach often referred to as “victim-centered,” which is based on the assumption to “always believe the victim.” Such approaches serve to vitiate traditional notions of investigative fairness, objectivity, and impartiality. Harvard Law School professor Jeannie Suk has described the victim-centered method as a “near-religious teaching” that is certain to harm future victims: “When the core belief is that accusers never lie, if any one accuser has lied, it brings into question the stability of the entire thought system, rendering uncertain all allegations of sexual assault.” 
- Gender Ideology: The Dear Colleague Letter has enabled a controversial ideology that views rape not so much as a criminal act, but rather as a natural outgrowth of so-called patriarchal rape-culture. The term “rape culture” implies that rape is both commonplace and widely condoned – notions that many would sharply disagree with. This ideology has had the effect of marginalizing law enforcement and the overall criminal justice system, thus shortchanging both rape victims and the accused.
HARMFUL TO UNIVERSITIES AND TO SOCIETY
- Free Speech: The Office for Civil Rights defines sexual harassment to include “unwanted verbal conduct.” It’s not hard to see how this definition can intrude on protected speech and academic freedom. The case of Laura Kipnis, communications professor at Northwestern University, is a good example. After she wrote an editorial in a national publication criticizing her university’s sexual harassment policy, two students filed a complaint against her, claiming her article created a “hostile environment” for future sexual assault claimants.
- Vigilante Justice: The campus committees, sometimes derided as “Kangaroo Courts,” are susceptible to pressures from college administrators and student activists, thus undermining public confidence in the outcomes of campus adjudications. This is consistent with a broader campus culture of intellectual intolerance, intimidation tactics, and even violent protests. In the Rolling Stone-UVA case, for example, the fraternity house where the rape allegedly occurred was vandalized, forcing its residents to go into hiding; violent protests were held on campus; and death threats were directed to dean Nicole Eramo.
- Administrative Costs: On March 29, 2016 the New York Times ran an article titled, “Colleges Spend Millions to Deal with Sexual Misconduct Complaints.” The article describes how Harvard University now has 50 full-time and part-time Title IX coordinators in its various schools. At Yale, nearly 30 employees work to support in support of Title IX. At the University of California at Berkeley, Title IX spending has risen by at least $2 million since 2013. In addition, colleges’ legal costs of responding to a years-long OCR investigation need to be considered. To date, there has been no estimate of the total expenditures arising from the various mandates of the Dear Colleague Letter.
- Understanding of Legal Precepts: Due process, the presumption of innocence, and rule of law are fundamental concepts that undergird the American criminal justice system. The campus disciplinary committees that now operate on campuses promote a different notion of justice and fairness. This has long-term implications for students who will one day be the nation’s voters, teachers, and lawmakers.
The Dear Colleague Letter has become a lightning rod of criticism from leading lawmakers, law professors, members of the U.S. Commission on Civil Rights, American Association of University Professors, American College of Trial Lawyers, and numerous other organizations. To date, three lawsuits have been filed against the Office for Civil Rights. Thousands of editorials and commentaries have been published opposing the directive.
Objective data points to the conclusion that the Dear Colleague Letter has been overwhelmingly negative in terms of its impact on sexual assault victims, the falsely accused, universities, and society as a whole. SAVE urges Congress to assert its constitutionally-derived authority over the Executive Branch with regards to the OCR’s unlawful issuance of its 2011 Dear Colleague Letter.