New Policy from Department of Education may Violate Students' Basic Constitutional Rights

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Federal Criminal Defense Lawyer Karen L. Goldstein sees new problems ahead for college students accused of certain crimes.

Without due process, fair laws and reasonable policies, many more students may find themselves entwined in an unfair legal labyrinth.

In relation to political and legislative policy, the erosion of constitutional and civil rights is typically a gradual and subtle process. But in some cases, the violation of these rights happens in a fairly overt and abrupt way. Federal Sex Crimes Defense Lawyer Karen L. Goldstein argues that a recent mandate imposed by the Department of Education's Office of Civil Rights is such an example and it requires a robust response.

"The way that people accused of certain crimes are often treated as guilty before a thorough investigation and trial is deeply troubling. But the federal government may be sanctioning such treatment on college campuses." Whether a student is accused of rape or harassment, "college administrators have been given the go-ahead to punish students without the most basic and fundamental constitutional guarantee of due process," Goldstein remarks. In an effort to eliminate certain "sensitive" crimes from college campuses, the Obama administration has taken a bold and, in Goldstein's estimation, dangerous step.

In 2011, the Department of Education "began to erode the rights of college students if they were accused of rape or certain types of assault," Goldstein observes while commenting on a letter issued by the Department in April of that year to federally funded schools. In that letter, the government gave schools the authority to use "reasonable suspicion" of guilt to take action against the accused. "Instead of presuming innocence and requiring that an alleged perpetrator be found guilty beyond a reasonable doubt, the feds told campuses to use a far less stringent measure: they now use a 'more likely than not' standard that is more common in civil than criminal law. Criminal law has traditionally had a much higher standard to protect the rights of people who are falsely accused."

To convict someone of a felony, there can be no doubt that an alleged criminal participated in a crime. But now on college campuses, "investigators can ruin someone's life even if they are falsely accused" as long as there is a "good chance that the accused is guilty," Goldstein argues. "People may lose career opportunities, academic scholarships, lose the chance to graduate and have their lives ruined. When the stakes are that high," the attorney contends, "the standard should be high. The Obama administration may have good intentions and may believe they are making college campuses safer but they are really destroying people's lives for what appears to be an emotional and politically motivated reaction to crimes on college campuses."

But after a recent investigation at the University of Montana Missoula, the government has amplified their efforts. In a letter dated May 9, 2013, the government issued new details describing what they see as the "blueprint" for campuses throughout the country. Any school that receives federal funding is obligated to adhere to the governments' guidelines. Though the government's letter is directed to the university officials in Montana, it has significant implications for other campuses and for the nation as a whole. The letter was jointly issued from the Department of Justice and the Department of Education and relates to the investigation in Montana (DOJ Case No. DJ 169-44-9, OCR Case No. 10126001).

In addition to the problematic burden of proof being lessened on college campuses, the new definition of harassment, Goldstein believes, will also further contribute to a culture that prosecutes the accused unfairly. When "sexual harassment" is defined as it now is by the Department of Education, Goldstein says, "more people will be falsely accused and punished for no justifiable reason." According to the letter, the new definition of sexual harassment is “unwelcome conduct of a sexual nature" including physical advances, unwanted emails or texts and verbal communication. The old definition stated that the harassment must be objectively defined and that the behavior would be offensive to a "reasonable person." The objective "reasonableness standard has now been replaced with a totally subjective standard which will certainly be applied in a less fair, neutral, and objective way" the attorney believes.

Additionally, Goldstein and other critics contend that this is not a reasonable definition because it makes what should be protected free speech "off limits" because so many communications can now be defined as harassment. When this is combined with the impunity that colleges have to impose their own justice, the effect can create what Goldstein calls "a police state on college campuses." Earlier this year, on May 17 and 15 respectively, writers in the Wall Street Journal and the Atlantic offered ferocious critiques of the new policy. These are just two examples of other critics who see many of the same troubles that Goldstein identifies. In the Atlantic, for instance, Wendy Kaminer asks, "What's the difference between an unwelcome request for a date and rape?" The answer, she argues, has been made unnecessarily difficult to answer by the federal government's recent stance.

While defense attorneys and other people who are particularly focused on civil and constitutional liberties may be paying attention to these developments on college campuses, Goldstein encourages more Americans to take notice. "This new approach to accusations of sexual misconduct and sexual harassment on college campuses should not just concern college students and their parents. Anyone concerned about defending the Constitution and its basic principles should be paying attention."

Though protection of guaranteed rights in any criminal case is vital, especially when sex crimes are alleged, "emotions are particularly sensitive and false accusations can destroy a student's life even if they are found not guilty." Based on her years of experience as a defense attorney, Goldstein knows that these crimes include special challenges. "In such cases, investigators and the public at large often jump to conclusions based on myths and emotions. Without due process, fair laws and reasonable policies, many more students may find themselves entwined in an unfair legal labyrinth. And even if these same students are not convicted, their college may make their lives a nightmare while effectively destroying the student's reputation."

So what can be done and how might college students protect themselves from the possibility of being swept up in a modern day witch hunt? Goldstein recommends that students, their parents, and other concerned citizens, voice their robust opposition to the latest decree by the Department of Education. She also suggests that every student become familiar with his or her school's policy and the potential punishments even though adhering to these policies may certainly create an environment of stifled free speech. Of course, if a student does become ensnared in the misguided system, they can count on Karen L. Goldstein as a rigorous defender of their rights.

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