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Abstract

In 2011, the Department of Education Office of Civil Rights published a Dear Colleague Letter (DCL) detailing the department’s views on the roles and responsibilities of colleges and universities under Title IX specifically as they relate to allegations of sexual assault. Numerous studies conclude that close to 1 in 5 college women are sexually assaulted while enrolled in institutions of higher education. Many of these studies are flawed yet they are being used as the justification for administrative overreach. Despite not having the legal authority, the DCL changed the legal standard to be applied when conducting sexual assault investigations from the clear and convincing to the preponderance of the evidence standard, and threatened to withhold federal funds if immediate and effective steps were not taken to end sexual assaults on college campuses. This pressure from the OCR resulted in an overly broad approach where the rights of the accused are being routinely ignored. Over the last couple of years, dozens of cases have been brought by expelled or suspended students claiming that school officials committed Title IX and due process violations during their respective Title IX investigations. Some have also successfully pursued claims for breach of contract. This paper examines the prevalence of sexual assaults on college campuses and is critical of published reports as being overly inclusive. It reviews early cases, which were typically dismissed under both the selective enforcement and erroneous outcome prongs, and later cases where courts found that school officials acted improperly and violated the rights of the accused. Sexual assault on college campuses is a serious problem and all allegation should be investigated promptly, but not at the expense of due process. Policy and practice recommendations are included.

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