Op-Ed: NJ Opposition to Changing Campus-Assault Rules Is Misguided

Andrew T. Miltenberg | April 18, 2019 | Opinion
State officials opposed to Trump administration’s proposed Title IX rule changes for how schools should handle assault and harassment complaints must not overlook due process

Andrew T. Miltenberg
Recently, New Jersey Attorney General Gurbir Grewal and Secretary of Higher Education Zakiya Smith Ellis announced a new initiative to raise awareness of sexual violence on college campuses. In doing so, they also announced their opposition to the Trump administration’s proposed Title IX rule changes over how schools should handle sexual-assault and harassment complaints from students.

While I applaud the Murphy administration’s efforts to raise awareness of sexual violence on campus, I respectfully disagree with their approach in shooting down the proposed changes to Title IX. These reforms are critical in giving accused students the right to due process, something that has been severely lacking from the current system.

Having represented more than 100 students at college campuses in red and blue states across the country, including many in New Jersey, I have seen firsthand how male accused students are inherently and routinely treated like criminals on college campuses — whether they are guilty or not — without the protections of the justice system or even the basic right to due process. The proposed rule changes guaranteeing accused students the right to a live trial would ensure students are innocent until proven guilty — and not the other way around.

To be clear, ensuring civil liberties on campus does not mean being permissive of acts of sexual violence. Criminal acts must be prosecuted. At the same time, we should all agree that Title IX policies need to protect the constitutional right to due process and a fair and impartial investigation for every student not charged with a crime.

Era of the ‘Me Too’ movement

Unfortunately, in the era of the “Me Too” movement, the mere allegation or suggestion of sexual impropriety is enough to get a student thrown out of college, due to the Obama administration’s well-meaning but deeply-flawed Title IX policies. These “guilty until proven innocent” directives have caused schools to brand more male students rapists based on the excessively low “preponderance of the evidence” standard as opposed to the “clear and convincing evidence” standard traditionally used in college disciplinary hearings.

In the past several years, there has been a surge in colleges mishandling these investigations and wrongfully prosecuting male students for fear of losing federal funding. Because of flawed Title IX directives and the clear disregard for the due process rights of male college students, hundreds of young men are facing life-changing consequences for allegations that have not been proven and crimes that have not been committed.

While certainly not perfect, the new proposed federal guidelines go a long way to ensure a full and objective investigative process and a fair, impartial hearing process in which the accused has a full opportunity to be heard and to question his or her accuser, the evidence and statements by witnesses, as well as an objective, independent appeals process.

Given this highly-charged political environment, it appears not all college and university administrators will be quick to adapt these new interim rules. Now more than ever, due to ever-changing interpretations of what the Department of Education requires, and moreover what each educational institution further requires by their individual policies and procedures, accused students are going to need experienced guidance to respond to allegations that can result in life-altering outcomes.