Yes, feds need to rethink campus sexual misconduct policies

A series of tweets I did about Thursday’s major announcement on Title IX policy from Secretary of Education Betsy DeVos:

I went on to explain that it all starts with the Department of Education’s OCR (Office for Civil Rights) 2011 Dear Colleague letter, and the further guidance that followed, which I wrote up here.

That’s a quote by Yoffe from a California Law Review article by Jacob Gersen and Jeannie Suk Gersen previously noted in this space here and here.

The courageous Harvard Law professors who called for a rethink of the Obama-era policy — Janet Halley, Elizabeth Bartholet, Jeannie Suk Gersen and Nancy Gertner — were profiled in a recent issue of The Crimson and in earlier coverage in this space here and here.

More coverage of DeVos’s speech and initiative, in which she pledged to use appropriate notice-and-comment methods rather than Dear Colleague guidance to introduce changes (“The era of ‘rule by letter’ is over”): Christina Hoff Sommers/Chronicle of Higher Education, Benjamin Wermund/Politico, Jeannie Suk Gersen/New Yorker, KC Johnson and Stuart Taylor, Jr./WSJ and cases going against universities, Johnson/City Journal, Bret Stephens/NYT (“no campus administrator was going to risk his federal funds for the sake of holding dear the innocence of students accused of rape”), Foundation for Individual Rights in Education, Hans Bader/CEI, Scott Greenfield and more (no basis in law to begin with), Robby Soave/Reason and more.


  • Last I checked, rape and sexual assault are criminal offenses. Aren’t these crimes usually handled by police and prosecutors?

    How is it that if the alleged victims or perpetrators happen to be enrolled at an institution of higher learning, this standard method of dealing with crime is changed?

    Why is it that universities have any, ANY, say in this?

    OK smart lawyers…..go. ‘splain that.

    • The school shouldn’t, and generally doesn’t, have any say in the criminal proceedings. However, schools generally take some kind of remedial action when one student harms another just as employers do. If you report your roommate keeps stealing your stuff and selling it, the school would take some kind of action to determine if your report is true and, if so, to remedy the problem (or would just take remedial steps if easy and harmless). Similarly, if you report another student bonked you on the head when you walked by, the school would take some action. They wouldn’t just say–report it to the police and let the criminal system work. A student who is raped by another student should not be faced with the choice of dropping out or living in the same dorm with her rapist while drawn out criminal proceedings play out. The problem is that the determination of initial remedial measures have gone from “Do the allegations warrant separation and if so, what is the best way of keeping these two people apart that is the least damaging to both” to “a student who might have been assaulted or harrassed must be protected from contact with the accused regardless of the significance of the allegation, the weight of the evidence, or the consequences to others.” Then there is the overlay of “A message must be sent that we won’t tolerate such conduct” in response to every allegation, again regardless of the significance of the allegation, the weight of the evidence or the consequences.

      • Sorry, but that axe simply doesn’t chop. Why, again, wouldn’t you report a crime? If a roommate, in my domicile, stole my things, hit me on the head or sexually assaulted me, it’s a cop dealing with that, period.

        What you describe are all actual crimes – theft, assault and rape. Not one civil matter.

        If a student is raped by someone, I would expect an arrest in very short order. I would also expect if the alleged perp were to get out on bail that there would be a no contact order – pretty standard I would expect (what’s that called….witness tampering / intimidation?).

        In most / all of these cases that Walter / Overlawyered brings up, there is ear splitting silence on criminal charges.

        • It’s a cop dealing with the criminal charges. However, it is the school dealing with the situation as a landlord/program operator. While in some jurisdictions criminal proceedings may happen quickly, in others they don’t. Enforcement priorities also vary by law enforcement agencies and prosecuting authorities. Some criminal investigations happen quickly while others stall. There may be a delay in filing criminal charges or decision not to, matters outside the school’s control. Schools have always had methods of dealing with accusations of misconduct affecting student life or the school’s programs, and will continue to need a system to do so. Assuming no legal or contractual constraints, an employer or landlord can just get rid of someone who has been accused of causing a problem, without ever telling them why. Under other circumstances, they have some process to determine if there is adequate cause under the applicable law or contract. Generally schools need processes that serve the same functions.

  • Someone asked why the tweet numbered 3/ was omitted in the series above. The answer is that in the original 3/ I slipped and gave the wrong year for the Dear Colleague letter. Rather than repeat the error I reworded as regular post text instead.

    • Since you brought up the tweets, I understand being on twitter as a means of communicating with people who otherwise might not see your writing. But when you move off twitter — to this blog, or to an article, etc. — why just reproduce tweets? Tweets are just headnotes, and as one of our best legal thinkers you know that headnotes are not analysis. Tweets should be strictly confined to twitter and if you can actually use paragraphs and not a series of 26 140-character headnotes to make your point, paragraphs are the more thoughtful way to go.

  • I enjoy experimenting with a variety of writing formats, each with its pluses and minuses. Given that 1) I wasn’t planning to invest the time drafting a freestanding prose post whose main point would have been “go read Emily Yoffe’s latest instead of mine,” yet 2) there was nonetheless interest among Twitter users in saving what I wrote there in an off-Twitter location, the main options were either to publish the tweets at Storify, and link that compilation at Overlawyered, or post directly at Overlawyered,

    Posting tweets in raw form also has the plus of enabling Overlawyered readers who are on Twitter — and there are many — to jump easily over there to retweet, look at reactions, or otherwise interact.

  • Do you have any insight as to the remedy, if any, for students charged under the Dear Colleague letter?