Controversy over OCR ‘Preponderance’ Mandate Reaches Southern Methodist U.

By on October 24, 2011

The Daily Campus, a student newspaper at Southern Methodist University (SMU), published an extensive article yesterday examining the ongoing controversy over the federal Department of Education’s Office for Civil Rights’ (OCR’s) April 2011 mandate that federally funded colleges and universities adjudicate allegations of sexual harassment and sexual violence under a lenient "preponderance of the evidence" evidentiary standard. This standard, as we’ve written many times, reduces the due process protections afforded to accused students by merely requiring that the evidence show the alleged offense is "more likely than not" (or approximately 50.01% likely) to have taken place.

Quoting our own Will Creeley, the Daily Campus article notes FIRE’s sustained opposition to this federal mandate:

The Foundation for Individual Rights in Education (FIRE) has been one of the most outspoken critics of the new mandate.

"This is too low of a standard," Will Creeley, the director of legal and public advocacy for FIRE, said. "This is the same standard used in hearings for speeding tickets."

[...]

"It is a college’s moral and legal duty to respond to such allegations, but shifting the burden of evidence just leads to more innocent students being accused," Creeley said. "It doesn’t increase justice, it just widens the net."

There’s more from Will in the article, and he gets it exactly right:

FIRE believes a "clear and convincing" evidence standard would serve both the victims and the accused more fairly.

"This move is well-intentioned, but lowering the standard is not the right way to go about it," Creeley said. "If there is an epidemic of these sexual assaults on campus, I don’t think you lower that number by making it easier to accuse."

Significantly, the Daily Campus also highlights the opposition of the American Association of University Professors (AAUP) to the OCR letter:

The American Association of University Professors (AAUP) echoes FIRE’s worries about the implications of the recently outlined standards. In a letter to the OCR in response to the new mandate, Cary Nelson, president of the AAUP, said: "While clear policy statements and timely responses are key for both the complainant and the accused, preserving a higher standard of proof is vital in achieving fair and just treatment for all."

For the AAUP, the main concern is that a professor could be accused of sexual harassment or rape and lose his or her job over the mere accusation. They believe this standard does not protect university professors or accused students from a battle of hearsay.

This is key, as we have welcomed the AAUP’s shared concerns (and those of many others, for that matter) about this major threat to due process and fundamental fairness on campus. Given the gravity of this threat, as well as the stakes involved for students and faculty caught up in campus adjudications of sexual violence or sexual harassment, it is heartening indeed to have allies such as the AAUP on the side of due process.

Our thanks to the Daily Campus at SMU for its coverage of this important issue. The entire article is well worth your time, so be sure to read it here.

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