When it appeared online in April, the website of a group called College and University Sexual Assault Screener issued a lot of dire warnings. Young men going to college, it counseled, should beware of institutions with “limited due process protections” and “alarming miscarriages of justice.”
The site alerted parents to colleges that had what it called a “climate of accusation,” provided a list of nine questions they should ask before sending their sons or daughters there, and critiqued the usefulness of affirmative-consent policies in sexual relationships.
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When it appeared online in April, the website of a group called College and University Sexual Assault Screener issued a lot of dire warnings. Young men going to college, it counseled, should beware of institutions with “limited due process protections” and “alarming miscarriages of justice.”
The site alerted parents to colleges that had what it called a “climate of accusation,” provided a list of nine questions they should ask before sending their sons or daughters there, and critiqued the usefulness of affirmative-consent policies in sexual relationships.
What it didn’t do was identify its authors or organizers. Nor did it last long: In late April, about a week after it first appeared, it was removed from the web, re-emerged for a day or two in May but without mentions of specific colleges, and then disappeared again. But it is the latest sign that the question of how colleges handle sexual violence has morphed from a matter of federal compliance to a major battlefront in the culture wars.
Waging that battle is a diverse array of groups protesting the federal government’s influential 2011 guidance on how colleges respond to claims of sexual misconduct — and, in some cases, the impact of that guidance and the methods of the #MeToo movement. The groups include well-organized efforts led by defense lawyers, parents of accused students, and organizations that are motivated less by concerns about sexual assault than by a broader interest in political and social conservatism. Their embrace of “due process” may be the only thing that binds them together.
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It can be an unpopular position. The handful of people who created College and University Sexual Assault Screener, known as Cusas, and the nonprofit organization behind it feared publicly speaking out on the issue because of the stigma surrounding sexual assault. That’s according to Cynthia Garrett, a lawyer and leader of another group, Families Advocating for Campus Equality, that is also calling for more due-process protections on campuses. She helped hone the message of the now-defunct website, and said its creators are mostly parents who say their children have been wrongly accused of sexual misconduct on campuses.
Organizations like Cusas reflect a need, she said, for more parents to consider what would happen if their children were falsely accused of rape on a college campus. “Parents are unaware of this whole body of knowledge — and, in my opinion, overreaction — to what would otherwise be considered normal behavior,” she said, such as a drunken hookup.
But the outspoken and sometimes provocative opposition presents a new challenge to colleges’ reputations and their legal liability. Initially it was the accusers who were most likely to warn of colleges’ mishandling of the investigations and punishment of sexual misconduct. Now, increasingly, it is the accused.
Seven years ago, the U.S. Department of Education, under President Barack Obama, pressed colleges to take a more active role in investigating and punishing sexual harassment and assault under Title IX, the federal law that is intended to protect gender equity.
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There was immediate resistance, particularly from college lawyers, who complained the department had overreached by prescribing policy without going through the federal rule making process. The grumbling grew louder as hundreds of colleges found themselves the subjects of lengthy investigations by the Education Department’s Office for Civil Rights.
Some legal scholars soon joined in opposing the new guidance. They invoked the due-process rights of the accused, arguing that colleges, encouraged by the Education Department, had gone overboard in a frenzy to make up for decades of neglecting the claims of female accusers.
College campuses are not male friendly.
Jeannie Suk Gersen, a professor of law at Harvard University, for example, has become a leading voice. She and her husband, Jacob Gersen, called out the Education Department and colleges in a 2017 Chronicle essay for expanding the definition of sexual misconduct “in ways that would have been unimaginable just a few years ago.”
In that article, the Gersens raised another concern: that in enforcing rules against sexual misconduct, colleges were paying too little attention to the rights of those accused of wrongdoing. “Unfortunately, since 2011, colleges have adopted inadequate and unfair procedures, perhaps in overzealous efforts to avoid negative attention” from the Office for Civil Rights, the Gersens wrote.
Such ideas have now become a rallying cry for myriad groups with varying agendas and little in common besides a shared disdain for the 2011 federal guidance and what they feel it has wrought. And the concept of “due process” has broadened in meaning from a basic legal principle to a rhetorical device invoked against a wide range of ills attributed to higher education and Title IX.
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On one end of the spectrum is the Foundation for Individual Rights in Education, which is well-known for its work on free-speech issues that extend far beyond matters of campus justice and sexual conduct. FIRE has published a guide to due-process protections and rated more than 50 public and private colleges on 10 measures, such as presumption of innocence, adequate written notice of the allegations, and the ability to present relevant evidence at a disciplinary hearing.
“The notions of due process, fundamental fairness, and fair procedure are as vital and necessary to society as any area of the law,” the guide says.
Then there are groups that have focused specifically on the real and potential failures of adjudication of sexual-misconduct claims. Cynthia Garrett’s organization, FACE, was founded by four women whose sons were accused of sexual misconduct on campus. While the group says its mission is to “advocate for equal treatment and due process for those affected by sexual misconduct allegations,” it does not define what it means by “due process” on its site, which offers a discussion forum and advice from a lawyer and from a parent.
The group’s board of directors and advisory board include a number of lawyers who have represented accused students in high-profile cases. Andrew Miltenberg, for example, has become well-known for provocative statements, including comparing a young man accused of assault to the civil-rights activist Rosa Parks and drawing a parallel between campus officials and the German Gestapo.
Another site, Save Our Sons, is also linked to a mother who details a story of false allegations against her son, but the identity and details about the group’s founder, Alice True, and her story are ambiguous. The site has links to news articles and contacts for legal counsel, as well as a section that raises unsubstantiated doubts about the guilt of Brock Turner, a former student at Stanford University who was convicted on three counts of felony sexual assault in 2016. Ms. True could not be reached for comment.
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Other groups are less clear about their origins or their purpose. But they consistently invoke the phrase “due process.” The organization Stop Abusive and Violent Environments, or SAVE, says it is “working for policy reform to protect victims, support due process, and stop false allegations.”
It says nothing on its website about its origins, but it uses the same address as the Center for Prosecutor Integrity, which “addresses prosecutor misconduct of all types, particularly misconduct associated with sexual assault cases.”
Beyond that are dozens of socially conservative political and religious groups that have joined the fight against what they see as the threats of feminism: false allegations, a climate of hysteria, and the end of “traditional” family values.
“College campuses are not male friendly,” says the website of the National Coalition for Men. “Many institutions have adopted Orwellian policies denying due process to men accused of some perceived slight or accusation.”
During its short life, the Cusas site sought initially to identify colleges with the worst climates for false accusations. It relied on data of crimes reported under the federal Clery Act, investigations by the Education Department’s Office for Civil Rights, and lawsuits filed by students. All of this pointed to what the site described as a climate of accusation, where a high number of reported crimes was an indicator that the rights of the accused were more likely to be trampled.
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And like many other organizations, the site focused less on what due process should look like on a campus and more on the perils of a faulty system. Students, young men in most cases, who face false claims of sexual misconduct could be “hounded off campus and out of school,” stalked by accusers for years afterward, and left isolated and depressed, the website said.
Jody Shipper, a lawyer and founder of the nonprofit consulting group Project IX, said the information on such websites sometimes lacks accuracy and nuance. The numbers in the Clery Act, for example, don’t represent the number of campus investigations or those that actually involved students. “They hear this thing about crime reporting and see a low number as good, but it might be there is a culture of not reporting,” she said. “We don’t know.’
Sexual assault is underreported. Reported incidents are only the tip of the iceberg. But that does not mean sexual assault is the only iceberg in the ocean.
The colleges targeted by the site — all of them private liberal-arts institutions — said the data were misused. Accusations about their climate and procedures, they added, were inflammatory and inaccurate.
“We do our best to make sure we are providing all the protections and due process that all students are expected to have in all of our policies,” said Tom Hicks, a spokesman for Coe College, one of many small colleges that were described as encouraging unfounded accusations of sexual misconduct.
Occidental College, another institution that received a negative rating in an early version of the Cusas site, responded that the Office for Civil Rights had “reviewed four years of cases and found that Occidental’s policies and procedures provide prompt and equitable resolution of complaints.”
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The Cusas group didn’t restrict its criticism to colleges. It also took aim at the technology company Callisto. Founded by Jess Ladd, who is a survivor of sexual assault, the company designed a platform that allows students to confidentially report sexual assaults to campus officials. Cusas initially blamed the company for collecting anonymous reports that more than a dozen colleges could use to investigate and punish students.
“They were describing us as an anonymous reporting system, which we are not,” Ladd said. A person who is making a report using Callisto has to reveal and verify their identity, she explained.
“We’re not trying to be the equivalent of the bathroom wall online,” she said. “It is our job to believe them; it is somebody else’s job to make a fair investigation. I think all of our schools are aligned with that.”
The website also picked out prominent colleges that have faced high-profile lawsuits filed by students who say their rights were denied. Accused students have begun to gain traction in the courts, but there are varying estimates of how many lawsuits have been filed against colleges for violating due process in sexual-misconduct enforcement.
KC Johnson, a history professor at Brooklyn College and co-author of The Campus Rape Frenzy, has cataloged 177 such lawsuits filed against colleges since the 2011 guidance from the Education Department, though some of those do not involve allegations of sexual misconduct. He also characterizes colleges of having “lost” 97 of those cases, but many of those defeats include denied motions to dismiss.
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A small percentage of the cases he cataloged include final rulings on the merits, and a large number were settled by the college and the complainant before they reached a judicial conclusion.
While numerous organizations are raising alarms about sexual-misconduct proceedings on campuses, the question remains whether the heated rhetoric over “due process” is advancing the debate — or even reaching parents and students.
That was at least one purpose of the Cusas group, said the site’s author and spokesperson, who took the site down less than 10 days after it first went up. The Chronicle has agreed not to identify the person, who feared harm by being publicly identified with the group.
The group wanted “a tone that is less about getting people to believe any particular theory about sexual violence and more about sharing information so that parents could ask better questions about schools,” the spokesperson wrote in response to written questions.
“It is important to realize that Cusas is not made up of sexual-assault denialists,” the spokesperson said in an email. “Sexual assault is underreported. Reported incidents are only the tip of the iceberg. But that does not mean sexual assault is the only iceberg in the ocean.”
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The growing number of lawsuits challenging colleges’ handling of sexual assault is “another iceberg,” the spokesperson wrote. “We are helping parents look out for that other iceberg.”
But most parents, it seems, have other priorities when it comes to higher education.
Kevin Myers, a spokesman for Reed College, which was initially named by the Cusas site, said the college tends “to get asked about whatever is most recently in the news. “It’s certainly one of the questions we’re prepared to answer,” he said. “We think we have a very good story to tell.”
“Ninety-nine percent of parents are not concerned about this,” said Jim Newberry, a lawyer who specializes in higher education for the firm Steptoe & Johnson.
“Maybe more should be if they fully comprehended the climate on campus and the effort to change that and the impact that Title IX could have on their children,” he said. Newberry is a co-author of a recent essay calling for both public and private colleges to go beyond the bare minimum of due process required under the law to better protect accused students.
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Even if parents of prospective students decide to make an issue of campuses’ handling of sexual assault, colleges’ requirements for due process under the law are evolving and far from settled.
Courts have set a lower bar for due-process protections in public-college disciplinary actions than for criminal trials, Newberry and his co-author, William Thro, general counsel for the University of Kentucky, wrote.
And private colleges are completely exempt from the U.S. Constitution’s due-process clause, they wrote in the essay. Students charging that private colleges have mishandled sexual-misconduct allegations against them most often file a lawsuit based on breach of contract, arguing that the college has violated their own written processes, Newberry said in an interview.
The lawsuits now working their way through the courts could eventually have an impact on the process that both public and private colleges use for their disciplinary processes. Even if judges don’t settle the matter in rulings, over time colleges are likely to respond in ways that will lessen the likelihood of landing in court.
In the much shorter term, Education Secretary Betsy DeVos has scaled back investigations by the Office for Civil Rights and issued interim guidance that replaces the Obama-era requirements for handling sexual-misconduct claims. That move has cheered advocates for accused students who see the new approach as a sign that federal officials have taken their concerns about due process seriously.
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With its short life over, Cusas won’t do much to influence opinion on due process on campus. But it demonstrated that the network of due-process advocates, decentralized as it is, is still growing.
Robert Shibley, executive director of FIRE, said he met the Cusas site’s author at a gathering in Philadelphia last year and emphasized the importance of reliable information.
“As for advice, the only thing I told [the author] was to be 100 percent accurate,” Shibley said. “We don’t need more sensationalism.”
Dan Bauman contributed to this report.
Eric Kelderman writes about money and accountability in higher education, including such areas as state policy, accreditation, and legal affairs. You can find him on Twitter @etkeld, or email him at eric.kelderman@chronicle.com.
Eric Kelderman covers issues of power, politics, and purse strings in higher education. You can email him at eric.kelderman@chronicle.com, or find him on Twitter @etkeld.