Parents dropping their sons off at college ought to have “the talk.” I’m referring to the risk of being accused of sexual assault, and the Biden administration’s major changes to Title IX come October.
If my two sons were starting college this Fall I would tell them this: be doubly sure you get consent — for her sake and yours. Maybe even record that consent (how romantic!). Your education and future may depend on it.
Under Biden’s proposed Title IX rules, if a college student is accused of sexual assault or harassment, he will no longer have the right to a live hearing, to cross-examine his accuser and witnesses, or to be represented by an attorney. Instead, a school administrator can decide to forgo a hearing and weigh the “credibility” of each party on his own, acting as investigator, judge, and jury in the case.
The standard for determining guilt will also be weakened from “clear and convincing” to a “preponderance of the evidence” — in other words, that there’s a 50.1 percent or greater chance an assault occurred. Not great odds in what are often “he said, she said” cases.
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There’s been a lot of coverage of Biden’s Title IX changes barring blanket bans on transgender participation in women’s sports. But more consequential to most students, and less frequently discussed, is the enfeeblement of due process rights for those accused of sexual harassment and assault.
College students — mainly young men — should be worried. Biden’s Title IX changes are a reversal of rules implemented by the Trump administration in 2020, and a return to the “believe all women” attitude laid out in the Obama administration’s 2011 “Dear Colleague” letter.
“Biden in 2020 campaigned on getting rid of Trump policies,” a Brooklyn College history professor who studies sexual assault cases, KC Johnson, tells me. “Biden, on this issue, is the truest of true believers.”
Biden didn’t “believe” his own accuser, though. False accusations of sexual assault may be rare, but if you’re the person being wrongly accused, you damn well want the right to prove your innocence.
“It’s a big deal,” the legislative and policy director at the Foundation for Individual Rights and Expression, Joe Cohn, tells me. These changes will “strip due process protections out of the process, or at least give schools the green light to do so.”
I want women who are assaulted to speak up and get justice. I was sexually assaulted by a stranger who jumped out of a bush and grabbed me late at night my first weekend of freshman year of college. I screamed loud enough to scare him away after a few grabs, but I understand the trauma. The man who attacked me later assaulted other students on campus.
Stripping accused students of the right to a fair hearing, though, is not a pathway to justice. Under Obama’s Title IX rules, there were more than 600 lawsuits brought by accused students against colleges alleging unfair disciplinary proceedings. Many of these suits were successful.
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In one high-profile case, a Columbia University graduate student was stripped of his diploma and fought in court for more than four years, until ultimately being cleared in large part because he had recorded audio of the night in question. Columbia settled with him for an undisclosed sum.
Another high-profile case that could have chilling effects on colleges that forgo live hearings and cross-examination is that of Saifullah Khan, an Afghan refugee who won a full scholarship to Yale. After a Halloween party in 2015, a fellow Yalie accused Khan of raping her. Khan says the sex was consensual.
Khan was acquitted of all charges in a criminal court in 2018, but Yale expelled him later that year anyway, after conducting its own hearing. Khan is now suing Yale and his accuser, Jane Doe, for defamation and $110 million in damages.
In late June, the Connecticut Supreme Court ruled unanimously that Jane Doe did not have immunity from defamation because the Yale hearing was so devoid of due process protections — no cross-examination and no testimony under oath — it could not be considered even “quasi judicial.” In essence, no due process, no immunity protections for accusers.
“At heart, what makes something judicial is fairness,” Khan told me when we met earlier this month, calling Yale’s proceedings a “kangaroo court.”
Could Kahn be guilty of rape? It’s possible. No one knows but him and his accuser. But he was acquitted in a criminal court, and the lack of due process protections at the Yale proceeding tarnishes its findings. That doubt doesn’t help Jane Doe. She may be facing another trial.
