It’s On Us PA Campaign Should Address Both Sides of Sexual Assault Issue
By Andrew T. Miltenberg
Recently, Governor Wolf announced nearly $1 million in grants to Pennsylvania colleges and universities for initiatives to combat campus sexual assault as part of the “It’s on Us PA” campaign, founded by former President Barack Obama.
While Governor Wolf’s intentions to prevent sexual violence on campus are certainly commendable, it’s also important to recognize the deeply-flawed Title IX policies that currently exist on college campuses. The “It’s on Us PA” campaign, which also allows individuals to report acts of misconduct on campus anonymously, does not take into account the broken system for sexual misconduct investigations.
One sexual assault is too many, and so is one wrongfully expelled male student. Having represented more than 300 students on college campuses across the country — including students at Penn State, Lehigh, Franklin and Marshall, and the University of Pennsylvania — I have seen firsthand how wrongfully accused male students are being unfairly punished, with no opportunity to defend themselves.
In 2011, the Obama Administration issued a policy directive known as the “Dear Colleague” letter to every college and university receiving federal funding, addressing their obligation under Title IX to respond to claims of sexual harassment and sexual violence. While the Obama Administration was right to insist that more serious attention be paid to the issue, the Department’s directives in the “Dear Colleague” letter have drastically overreached with disastrous consequences for accused male students who have been denied their basic right to due process.
Unfortunately, the Dear Colleague letter tramples on the civil and due process rights of accused students. These Title IX policy directives — which have come under fire by constitutional law scholars, college professors, and elected officials alike — aggressively dictate how colleges and universities handle sexual assault and sexual harassment on campus by laying out specific requirements that schools must adopt and utilize. 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.
Indeed, the Obama Administration’s “Dear Colleague” letter has resulted in sweeping regulatory changes, resulting in colleges and universities setting up their own campus rape tribunals to adjudicate cases of sexual assault. Unsurprisingly, there has been a surge in colleges mishandling these investigations and wrongfully prosecuting male students for fear of losing federal funding. Because of these 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.
Make no mistake, these policies are ruining the lives of the wrongfully accused. At Drake University, a young man was wrongfully expelled in a case in which he had filed the same sexual misconduct charges against his accuser, but only the woman’s charges were investigated and only the male student prosecuted. A pre-med student at Penn State recently won an injunction in his lawsuit against the University to allow him to return to campus after he was wrongfully suspended for fabricated sexual misconduct charges. And at Clemson University, two students manipulated the campus’s sexual misconduct policies and used false rape allegations to prosecute, harass and defame a fellow student.
Recognizing the need to restore due process rights on college campuses, Secretary DeVos and the U.S. Department of Education last year announced major improvements to a broken system, including providing reasonable interim measures, eliminating double jeopardy, and requiring the consideration of exculpatory evidence. Unfortunately, her announcement was met with divisive political rhetoric and on-going protests.
Ensuring civil liberties on campus does not mean being permissive of acts of sexual violence. No matter what our politics may be, we should all agree that Title IX policies need to ensure that all students — both male and female — have the right to due process and a fair and impartial investigation. The “It’s on Us PA” campaign should work to both prevent sexual assault and address the broken system of sexual misconduct investigations at Pennsylvania colleges and universities.
With offices in New York City and Boston, Andrew Miltenberg is a New Jersey attorney who specializes in campus assault due process. He is currently engaged in several groundbreaking Title IX cases at Pennsylvania Colleges and Universities.