At the University of North Dakota, Yes Also Means No

July 21, 2011

Earlier today, Tim Cavanaugh noted that the Department of Education’s Office for Civil Rights (OCR) has instructed colleges that due process in cases involving sexual harassment or assault is inconsistent with federal law. "In order for a school’s grievance procedures to be consistent with the standards in Title IX," OCR’s head, Russlynn Ali, wrote in an April 4 letter, "the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)." Writing in The Wall Street Journal, Reason contributor Harvey Silverglate suggests that Ali’s missive, which "sends the message that results—not facts—matter most," encouraged the University of North Dakota to overlook what sounds like an egregious miscarriage of justice:

On Jan. 27, 2010, [Caleb] Warner learned he was accused of sexual assault by another student at the University of North Dakota. Mr. Warner insisted that the episode, which occurred the month prior, was entirely consensual. No matter to the university: He was charged with violating the student code and suspended for three years. Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for her arrest remains outstanding.

Among several reasons the police gave for crediting Mr. Warner’s claim of innocence was evidence of a text message sent to him by the woman indicating that she wanted to have intercourse with him. This invitation, combined with other evidence that police believe indicates her untruthfulness, has obvious implications for her charge of rape.

The Foundation for Individual Rights in Education (FIRE), which Silverglate co-founded, urged University of North Dakota President Robert O. Kelley to re-examine Warner’s case in light of this evidence. Six weeks after the Department of Education letter went out, FIRE received a reply from the school’s general counsel, who said that she did not perceive any "substantial new information" and that in any case the proceeding that led to Warner’s three-year suspension "was not a legal process but an educational one."

[Thanks to Hans Bader for the tip.]

Schools: University of North Dakota Cases: University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case