Note: This is not about the new Federal guidelines on transgender access to bathrooms. Please read the article before you comment!

A while back, the Obama administration’s Education Department informed American colleges that those persons accused of Title IX violations (e.g., sexual harassment and assault) should be judged by “preponderance of the evidence” versus the legal standard of “guilty beyond a reasonable doubt”. The letter wasn’t absolutely binding, but colleges fell in line, as they feared losing federal funds. (Title IX, by the way, was the 1972 regulation—and a good one, in my view—that colleges receiving federal funds should not be allowed to discriminate in any way on the basis of gender. Among its other salubrious effects, it gave a useful shot in the arm to women’s sports.) But the government has taken it further, and in an insalubrious way.

At the time, I thought it would be a disaster, for punishing students using guidelines very different from those used in the courts is an invitation for lawsuits. I also thought that behaviors as odious as sexual harassment and assault should be adjudicated by the court system, and if a student were found guilty, he or she could then be severely punished by the college. Colleges are not equipped to properly judge such matters, and using a standard like “preponderance of the evidence” makes their judgments even wobblier. University administrators and professors aren’t trained to act as judge and jury.

I do sympathize with victims who don’t want to go to the police out of various fears (being disbelieved, treated badly, and so on), but harassment and and especially assault are very serious crimes, ones that should be dealt with by the police and the courts. When they’re not, colleges tend to drop the ball over and over again. That leaves them open to lawsuits for improper conduct, and for violating students’ civil rights. If colleges do investigate, because a student simply won’t go to the police, then I think they should use the legal standard of “guilty beyond a reasonable doubt.” That makes the entire system equitable and eliminates at least some subjectivity from the process.

I mention this because someone sent me a Washington Post column by George Will about this issue (“Due process is still being kicked off campus“), and I had to agree with Will. (Yes, such is the fate of liberals these days—having to agree with conservatives because the Authoritarian Left is sometimes even more misguided.) Will notes that mere accusations, even without a preponderance of evidence, is enough to trigger college action, and we know of such cases at Duke and The University of Virginia.

But the case Will mentions, which is covered by both The Denver Post and The Chronicle of Higher Education, shows what the new Title IX guidelines have produced: an accusation (by a third party), a suspension, and a lawsuit, even when there was no evidence that any violation was committed. Here are the facts from the Denver Post, beginning with a student seeing a hickey (you do know what that is, right?) on her friend’s neck. That eventually led to the suspension of the accused, Grant Neal, a student athlete at Colorado State University at Pueblo. In return, Neal has filed a lawsuit against the college (you can see all the documents here), as well as against the Department of Education, for violating his civil rights.

. . . a peer of Jane Doe’s in the Athletic Training Program reported the encounter as rape to CSU faculty after seeing a hickey on her neck, says the 90-page lawsuit filed by Denver attorney Michael Mirabella and New York City attorneys Andrew Miltenberg, Tara Davis and Jeffrey Berkowitz. The lawsuit points out that the peer was not an eye witness to the sexual encounter and did not hear about it from either Neal or the woman. DeLuna [Jennifer DeLuna, director for Diversity and Inclusion] notified Neal on Dec. 18 that he had been found responsible for “sexual misconduct” in violation of the university’s code of conduct. His “unwarranted and severe” penalty was suspension for the remainder of Jane Doe’s enrollment at the college, the lawsuit says. . . . Neal lost his football and wrestling scholarships, which damaged his future education, career, reputation and athletic prospects. The lawsuit gives graphic details about several sexual encounters between Neal and Jane Doe. When later asked about the events, Jane Doe made it clear their relationship was consensual, the lawsuit said.

The supposed “victim” says she was not assaulted. From the Chronicle of Higher Education:

“Our stories are the same, and he’s a good guy,” Jane Doe was quoted in the lawsuit as telling a university official. “He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla.”

Why, then, was he suspended, and why did he lose his scholarships? Apparently because a third-party report of a hickey constituted “preponderance of evidence”. Reading other reports, I can’t find any further evidence beyond the friend seeing a hickey, and if the supposed victim says that no assault took place, why was the accused convicted?

This is what happens when colleges, pushed by the Obama Adminstration, internalize a standard of guilt different from that used by criminal courts. That’s a conflict guaranteed to produce lawsuits.

As I said, I think that serious criminal charges should be tried by the courts, not by ill-equipped universities. A conviction in court gives a college every right to sanction the accused as hard as they can. But if there’s no court case, then colleges must adjudicate the same way the courts do, for what reason is there to judge criminal behavior by a less rigorous standard in college than in court? Can you have one standard of civil rights on campus, and another in society?

Readers can weigh in here, and I add that I am not questioning the Title IX statute itself, which I approve of, but the new addendum about how colleges should adjudicate violations.