A growing consensus among lawyers who have been representing students suing their universities for a denial of due process rights in sexual assault hearings is that the schools are being incentivized by the Department of Education to find students guilty rather than adhere to a fair process.
When writing recently about the lack of due process afforded to students accused of sexual assault, feminist lawyer Naomi Shatz pointed out that administrators will be playing investigator, judge, jury and prosecutor in order to find students guilty.
“These same administrators, who used to have an incentive to avoid finding students guilty so as to sweep allegations of assault under the rug, now have an incentive to find against the accused to ensure that the Department of Education does not open an investigation into the school and potentially revoke its funding,” Shatz wrote.
Probably the best and most obvious example of this comes from Ohio State University. In July, OSU fired its marching band director, Jonathan Waters, after a school investigation that found “sexualized” culture among band members that Waters apparently didn’t do enough to stop.
Before this, OSU had been on the Education Department's list of colleges and universities that were being investigated for Title IX violations. After the school fired Waters, they were removed from the list. And the Department even cited the firing as one of the reasons it stopped investigating the school.
“This agreement, and The Ohio State University’s recent response to the culture within the marching band, set clear and vitally important expectations for a community-wide culture of prevention, support, and safety,” said Assistant Secretary of Education for civil rights, Catherine E. Lhamon.
The rest of the agreement included a webpage for accusers to find information relating to sexual assault reporting, training students on bystander intervention and documenting the school’s sexual assault investigations.
In an e-mail to the Washington Examiner, Department of Education press officer Jane Glickman provided a link to the above-quoted press release and claimed the department's decision to remove OSU from the list of investigations “was not connected to issues with the band director.”
After being directed to the quote in that same release, which mentioned the marching being part of the decision, Glickman told the Examiner that it was “a quote – and there are commas between agreement and the marching band issue.” Glickman then said to look at the documents linked in the press release, which also mention the marching band issue as having played a part in the department's decision to stop investigating the school.
When asked about these further references to the marching band, Glickman declined further comment beyond the press release.
Josh Engel, an Ohio-based attorney who represents students being denied due process in sexual assault hearings, told the Washington Examiner that schools won’t get credit for a fair process if it doesn’t lead to a punishment.
“All the incentives for the school are lined up at the moment to encourage them to throw kids out. Schools do not get any credit from the Department of Education because they provide adequate or more-than-adequate due process,” Engel said. “All the Department seems to be concerned about these days is results, which is, ‘how many kids have you disciplined?’ ”
In a blog post for Zalkind, Duncan & Bernstein (where Naomi Shatz is a lawyer), David Russcol expanded on the problem by noting the threat of lost funding that colleges and universities face.
“Most universities have readily adopted these ‘suggestions’ because, if [the Department of Education] investigates a school and does not like what it sees, it has the right to pull all federal funding from the school — research grants, financial aid, work study funds, and countless other types of federal money,” Rosscol wrote. “[J]ust the threat is a powerful incentive for schools to adopt DOE’s agenda.”
It certainly worked for OSU, and the emphasis being placed on schools by Obama's administration will only make the problem worse.