SHORT TAKES


August 2, 2012

The OCR's Newest Target: Xavier University

The Cincinnati Enquirer reports that Education Department's Office of Civil Rights (OCR) has entered into its latest Title IX-related agreement with Xavier University. Unlike the OCR's agreement with Yale, which used a manufactured controversy to weaken the due process rights of the university's students, at least at Xavier the OCR involved itself only in response to actual complaints of sexual assault. But, as with Yale, the outcome revealed a basic lack of respect for the presumption of innocence and fair play for all students.

The heart of the case at Xavier, according to the Enquirer: "Two female Xavier students charged that a male student was twice allowed to remain on campus after being found responsible for sexual assaults, and a third charged that XU did not treat her fairly in her sexual harassment and stalking claim."

In fact, the male student, Sean Marron, was acquitted of four counts of sexual assault in a bench trial. The trial records were sealed, but according to the court reporter, the judge ruled as he did "due to inconsistencies" in the accusers' stories and "a lack of evidence." In the aftermath, Xavier dismissed two student life officials, on grounds that they mishandled the female students' on-campus complaints, before the students filed criminal complaints against Marron.

Some portions of the OCR-Xavier agreement are unobjectionable. For instance, the agreement requires Xavier to conduct "impartial" investigations of sexual assault complaints, to include "the opportunity for the parties to present witnesses and evidence." How this requirement is consistent with the OCR's Yale agreement (which helped to usher in the "informal complaint" procedure in which accused students don't have a right to present evidence of their innocence) the OCR doesn't say. Indeed, another provision of the agreement urges Xavier not to use the "informal" complaint procedure that Yale has made notorious. (The female students claimed that the dismissed Xavier administrators tried to use the mediation process to make their claims go away.)

If, in fact, the OCR were actually committed to "impartial" investigations of on-campus sexual assault, or eager to ensure a full presentation of evidence in disciplinary proceedings, the Xavier letter might be admirable. But, of course, fairness is not OCR head Russlynn Ali's goal, as other components of the Xavier letter make clear.

First, unsurprisingly, is a lack of concern with traditional standards of due process that had become one of Ali's hallmarks. At the OCR's demand, the Xavier agreement institutionalizes double jeopardy, giving accusers the right to appeal any not-guilty finding. And the agreement requires training of all Xavier officials in the "appropriate legal standards" to follow in campus sexual assault complaints. Lest there be any doubt: in the OCR's "preponderance-of-evidence" world, these standards "differ from a criminal investigation."

Second, the agreement praises Xavier for establishing a "Title IX Task Force" consisting of "groups focused on prevention of sexual assault already on campus." This task force doesn't include any civil libertarian organizations, or legal clinic groups. But it does include the Office of Multicultural Affairs. The OCR's apparent message: far-left campus organizations are perfectly acceptable to assist in setting up campus sexual assault policy. (Needless to say, no right-of-center groups were assigned to Xavier's Title IX Task Force.)

Third, in a discussion of sexual assault complaints, the OCR demands "assurance that victims are aware of their Title IX rights." But, of course, at the stage of the complaint, the accuser is at most an alleged victim. By deeming the accuser a "victim," is the OCR accepting the argument of extremists such as Wendy Murphy that women never lie about rape? Or does the OCR believe that even women who file false claims of sexual harassment or assault are nonetheless, somehow, "victims"?

Finally, the OCR makes clear its contempt for the judge's ruling in the Marron case. Under the terms of the agreement, if Marron returns to Xavier (he's currently enrolled at another school in Ohio), Xavier must explore prohibiting Marron's enrollment in the same "same courses, academic activities, and extracurricular activities" in which one of the accusers--or, in the OCR's language, one of the "victims"--is enrolled. Again, a judge found Marron not guilty because of inconsistencies and a lack of evidence in the accuser's tale.

An acquittal, it seems, must not be allowed to come in the way of the OCR's agenda.

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