Channels, Fall 2016

Kirkpatrick • Campus Sexual Misconduct Due Process Protections Page 170 procedures for going far beyond what Title IX required. 28 The professors primarily complained that the policy exceeded the scope of the Title IX legislation with which Harvard sought to comply and that the policy was instead drafted and implemented largely without consulting the faculty. The group wrote that the policy had reasonable aims but that the punitive elements unfairly disfavored the accused. Harvard’s policy provided the accused with no opportunity to see the facts against him, face the accusing party, or even have counsel available. The panel wrote that these procedures lacked the most basic elements of fairness and due process, were stacked overwhelmingly against the accused, and were in no way required by Title IX law. Harvard’s policy noticeably stated that any instance of sexual conduct that occurred when a person was so incapacitated as to be incapable of inviting the conduct would be deemed unwelcome. The professors lamented how one-sided the policy was and criticized the university for failing to adequately address the complexity involved in these situations. A growing number of lawmakers are speaking out that campus sex cases must be referred to criminal justice authorities in order to restore due process to the campuses. Senators from both sides of the aisle have said this problem is serious. For example, Republican Senator Chuck Grassley from Idaho stated that the crime of rape both off campus or on campus should be treated the same way. 29 Democratic Senator Sheldon Whitehouse from Rhode Island voiced his concern that law enforcement is being marginalized when it comes to the crime of sexual assault on college campuses. 30 Organizations such as the People for the Enforcement of Rape Laws (PERL) oppose this expansion of Title IX that grants schools judicial powers to decide sexual assault cases. The accused can file a Title IX lawsuit against his or her institution alleging that gender was the motivating factor in the discipline. Male students are increasingly turning to Title IX gender discrimination and bias lawsuits to fight for liberation from campus hearing sanctions. In addition, students are arguing negligence and breach of contract on behalf of the university, including allegations that campus officials are leading superficial investigations and awarding the accuser special treatment at hearings, and administrators are ignoring exculpatory evidence from the accused. In many instances, courts have held that private universities are contractually bound by promises made in their student handbooks and other such policies. In the same way, many accused-student lawsuits have included claims that universities breached their contractual obligations by failing to follow their own procedures in campus adjudications. These claims have not proven successful for the accused student plaintiffs. But they do imply that if the school does not comply with reasonable expectations in their handbook, then they will be held liable to the accused. In most cases, the issue at hand is that a university’s procedures 28 Bartholet. E. (2014, October 15). Rethink Harvard’s sexual harassment policy. The Boston Globe. Retrieved from https://www.bostonglobe.com/opinion/2014/10/14/rethink-harvard-sexualharassment- policy/HFDDiZN7nU2UwuUuWMnqbM/story.html 29 Lawmakers speak out. (2015). SAVE . Retrieved from http://www.saveservices.org/sexual- assault/lawmakers/ 30 Id.