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Experiment in Campus Jurisprudence, 2011-2021

In 2011, the Department of Education’s Office for Civil Rights issued a controversial Dear Colleague Letter on sexual violence. The new OCR policy called for campus disciplinary committees to handle all allegations of sexual misconduct, with significantly fewer due process protections for the accused.

To evaluate its effectiveness, the American Association of Universities sponsored surveys at the same colleges in 2015 and 2019, allowing comparisons of the effects of policies established under the Dear Colleague Letter. The AAU surveys documented actual increases in nonconsensual sexual victimization among undergraduate students:

    • Men: 1.4% increase
    • Women: 3.0% increase

In 2019, only 11.2% of sexual assaults were reported to campus police, possibly because only 45% of victims believed that school officials were “very likely” or “extremely likely” to take their report seriously.

These disappointing findings were confirmed by other reports:

  1. The American Association of University Women reported that 89% of American colleges received zero reports of rape incidents in 2016.
  2. SAVE documented dozens of cases in which complainants were mistreated by campus disciplinary committees.

TIMELINE

Following are key events in this ever-evolving experiment in campus jurisprudence from 2011 to the present.

2011:

2012:

2013:

  • The OCR and Department of Justice issued a Resolution Agreement with the University of Montana that had the effect of requiring the university to disregard the Supreme Court’s Davis v. Monroe “objectively offensive” definition of sexual harassment, thereby intruding on the expression of protected free speech.
  • Letters were sent to the Departments of Justice and Education critical of the University of Montana Resolution Agreement:
    • Women’s Committee of the American Association of University Professors (June 6)
    • Foundation for Individual Rights in Education (July 16)
  •  Families Advocating for Campus Equality (FACE) was established to engage in family support, education, and advocacy.
  • Seven federal lawsuits were filed against colleges.
  • 198 articles and editorials were published critical of the OCR policy.

2014:

2015:

2016:

2017:

2018:

  • Supreme Court justice Ruth Bader Ginsburg commented: “There’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing.”
  • In April, 23 Cornell University law school professors filed a brief in court to require the school to follow its own due process policies in a case involving a graduate student about to receive his PhD degree.
  • On June 26, the Federalist Society’s Regulatory Transparency Project issued its report, “Ending Sex Discrimination in Campus ‘Sexual Misconduct’ Proceedings.”
  • On November 29, a Due Process Statement signed by nearly 300 leading law professors, other legal experts, and scholars was released. The Statement outlined principles for the investigation and adjudication of campus sexual assault allegations:
  • By coincidence, the Department of Education released its proposed Title IX regulation on the same day.

2019:

2020:

  • On May 6, 2020, the Department of Education issued its final rule, which took effect on August 14. For more information, see SAVE’s New Title IX Regulation page.
  • Lawsuits to block implementation of the new regulations were filed by the following organizations:
    1. 18 Attorneys General from PA, NJ, CA, CO, DE, DC, IL, MA, MI, FL, GA, IN, KY LA, MS, NE, OK, SC, SD, and TN
    2. Victim Rights Law Center
    3. State of New York
    4. American Civil Liberties Union

2021: