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By Attorney Robert Franklin
September 22, 2012

Veteran Hamilton County, Ohio prosecutor Joe Deters called the process “fundamentally unfair” and “seriously flawed,” and he was right. What he didn’t say was that the process is also the law of the land.

The process Deters was talking about was the one used to expel budding basketball star Dezmine Wells from Xavier University. A young woman had leveled sexual abuse allegations at Wells and, as night follows day, he was “convicted” by a panel of students, faculty and administrators, and expelled from school. Dez Wells had no prior offenses of any kind on his record, but, apparently based on her word against his, he has now been forever branded with a scarlet ‘A’ for ‘abuser.’ The university denied Wells the right to an attorney to assist the 19-year-old in defending himself.

Because the allegations were not just of an academic but also a criminal nature, the local District Attorney, Joe Deters, investigated the case. He appointed two senior sex crimes investigators to the case which was duly presented to a grand jury. The grand jury declined to bring charges against Wells. Deters told the Sporting News, “It wasn’t even close…. We would never take anything like this to court. It just wouldn’t happen.”

So a case that experienced prosecutors regarded as one they wouldn’t even consider pursuing was one for which Xavier University summarily expelled a young man with an exemplary record. How is that possible? The Xavier administration explained.

“Federal law (Title IX) and federal regulations and guidances prohibit universities from ceding student conduct matters to the criminal justice system. The Federal law requires schools to act quickly and all schools, by law, must use the ‘preponderance of the evidence’ standard, whereas the criminal justice system uses the ‘probable cause’ standard to indict, and the ‘beyond a reasonable doubt’ standard to convict.

“The process used by the Xavier University conduct board is the standard used in American universities.

In other words, federal law requires every college and university in the country that receives Title IX funding (i.e. essentially all of them) to dispense with the legal concept of probable cause when faced with allegations of sexual misconduct by a student. Any institution that fails to do so stands to lose all such federal funding.

In addition, colleges and universities are required by federal regulations under Title IX to try claims of sexual misconduct under the lowest standard of evidence in the legal system – preponderance of evidence. That means if a jury or other fact-finder concludes that there is the slightest bit more evidence supporting the complaint than not, then the accused must be found guilty and punished. That’s what happened to Dez Wells. Often, a woman’s tears fall heavily on the scales of justice.

But surely, if this is the law of the land, Congress must have carefully considered the matter and passed the law after weighing the pros and cons. We may not like what Congress does, but at least on some level, it can be called the will of the People, right? Wrong. The Title IX regulations that tossed Dez Wells out of Xavier University were established by a single person who wrote a single letter to the administrations of all institutions receiving Title IX funding. That person is the assistant secretary for civil rights of the U.S. Department of Education, Russlynn Ali. In that letter, she and she alone told every college and university in the land that, by her fiat, all students accused of sexual impropriety would henceforth be judged by the lowest evidentiary standard extant.

And, given that these are allegations made by and about college students, the people judging their veracity are, as in Dez Wells’ case, inexperienced in deciding such matters. Hamilton County DA Joe Deters noticed the problem with that immediately.

Deters’ objection was rooted in the Xavier conduct board process, which he described as positioning Wells and his accuser — without legal representation — before a panel consisting of Xavier students, faculty and administrators. Deters stressed that, in his opinion, these people were “untrained” to deal with sexual assault allegations… “This is no laughing matter. And people are reviewing it who, I would suggest to you, haven’t been doing it for decades.”

If it’s any consolation to a young man who’s had his reputation destroyed, he’s far from alone. At the University of Montana, a quarterback has been disciplined by the school for having sexual relations with another student about which she herself says “I don’t think he did anything wrong, to be honest.” A male student in North Dakota was recently reinstated after being expelled based on the allegations of a female student subsequently proven to have been false. Based in large part on Russlynn Ali’s unilateral decision, campuses across the country have become intolerant places in which the merest claim of sexual impropriety against a male student is sufficient to have him expelled from school to the permanent detriment of his reputation. To date, at least 73 editorials have been written opposing the policy.

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Again, Joe Deters sees the problem.

“I would hope [Xavier] would revisit this thing. They’re set up to protect their students, but Dez Wells is a student, too.”

Joe Deters knows what Russlynn Ali either doesn’t, or about which she doesn’t care – that if we want to protect students from the slings and arrows of everyday life, we should protect all students, not just the 59% who happen to be female. Of course all students should be protected to the extent possible from sexual assault and other crimes. But, as in all cases in which wrongdoing is alleged, those with the power to decide the fate of the accused must have that power limited by some form of due process. Failure to do so not only violates one of the sacred canons of American law and morality, it threatens to turn college campuses into a 21st-century version of the Inquisition.

� 2012 - Robert Franklin - All Rights Reserved

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Robert Franklin has been a licensed attorney in Texas since 1980. He’s on the Board of Fathers and Families, the largest and most effective organization in the country fighting for family court reform. He writes and edits the Fathers and Families blog. He’s published journalism, essays and op-eds in a wide variety of online and print media including the Toledo Blade, Houston Chronicle, Seattle Times and World Net Daily. His legal writing has appeared in the Houston Law Review and he’s published poetry in several journals including the Concho River Review and an anthology of Texas poets.

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Because the allegations were not just of an academic but also a criminal nature, the local District Attorney, Joe Deters, investigated the case.