Cathy Young Highlights New Threats to Due Process on Campus

By November 7, 2011

Writing for RealClearPolitics, columnist Cathy Young details the threats to due process rights for students accused of sexual harassment and sexual assault presented by recent guidance from the Department of Education’s Office for Civil Rights (OCR) and a new draft of a bill to reauthorize the Violence Against Women Act (VAWA).

Young uses FIRE’s recent victory at the University of North Dakota on behalf of student Caleb Warner as a frame to evaluate the reduced evidentiary standard mandated by OCR—a standard that would be enshrined in federal law, were the VAWA draft currently circulating on Capitol Hill to pass:

Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice system — but his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to answer the charge.) Yet Warner remained banned from campus until last month, when he was finally reinstated after the indefatigable FIRE — the Foundation for Individual Rights in Education — interceded to publicize his plight.

Now, some politicians are pushing for measures that would create more such travesties. Warner was found guilty under a “preponderance of the evidence” standard of proof — the lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense.

Young notes the critical response to OCR’s “preponderance of the evidence” mandate and points out the high stakes for student due process rights presented by the proposal to codify this low standard into federal law:

The OCR letter sparked widespread controversy, with FIRE and other critical voices warning that its proposals could undermine both due process for students and accuracy in campus sexual assault investigations in order to obtain more convictions. Yet a number of schools, including major universities such as Stanford and Yale, quickly amended their procedural rules in response. A comment from Stanford Dean of Student Life Christine Griffith strongly suggested that concerns about violations of students’ rights were not misplaced. If some were worried that the changes in the burden of proof might be unfavorable to the accused, Griffith told The Stanford Daily, it was “an opportunity for people to be saying to themselves, ‘I need to be really educated about these issues because I don’t want to find myself in this circumstance.'” In other words, it’s up to potential defendants to be extra careful to avoid any ambiguous situation that might lead to a rape charge.

Now, a new effort is underway to strong-arm colleges and universities into compliance. The Senate draft bill reauthorizing the Violence Against Woman Act, sponsored by Sen. Patrick Leahy of Vermont, would require all schools that receive federal money to follow the OCR’s guidance in disciplinary proceedings. What’s more, this version of VAWA expands the OCR’s recommendations so that the “preponderance of the evidence” standard must apply not only to complaints of sexual assault but also of domestic or dating violence and stalking. Non-compliant institutions stand to lose all federal funding, including their students’ eligibility for tuition assistance.

Crucially, Young points out that although campus hearings are not criminal courts of law, the ramifications of a guilty finding are devastating. She writes: “A student found guilty of sexual assault in such a hearing faces not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.” This is exactly right, and makes it all the more important that students, parents, administrators, and the general public insist on affording those accused of such serious misconduct the due process protections necessary to ensure a just outcome. As FIRE wrote in our May 5, 2011, letter to OCR:

Requiring a lower standard of proof does not provide for the “prompt and equitable” resolution of complaints regarding sexual harassment and sexual violence. Rather, the lower standard of proof serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Insisting that the preponderance of the evidence standard be used in hearing sexual violence claims turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard.

Be sure to read Cathy Young’s article in its entirety.

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 U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections