How many other Caleb Warners are out there?
That’s the focus of a new letter to the Obama administration that pleads with officials to remove a threat to students the Department of Education created a year ago with directions that on-campus sexual assault cases be determined on a low-level "preponderance of evidence" standard of proof.
Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police. Officers not only refused to charge him but alleged his accuser made a false report. Police issued a warrant for her arrest.
It took 18 months, a time during which Warner not only was banned from the UND campus but from all college campuses in the state, for the university to agree to reconsider the conviction and clear his record.
The Foundation For Individual Rights in Education, or FIRE, said "nobody should be surprised that [Warner] does not want to return to UND."
"The university showed less than zero concern for disrupting his life and career and branding him a criminal based on an extremely low standard of evidence, and has shown zero inclination to be remorseful about what it has done," the group said.
But that "extremely low standard of evidence" – general considered a "preponderance of evidence," meaning that something was more likely than not the cause, has been cited by the Obama administration as the appropriate level of proof for campus court decisions regarding sexual assault allegations. FIRE has issued a letter signed by more than a dozen civil rights organizations asking that the situation be addressed and corrected.
Gone at the direction of federal officials was the "proof beyond a reasonable doubt" standard used in most criminal proceedings.
FIRE said this week it was joined by 19 other signatories in a letter to the Department of Education’s Office for Civil Rights asking administration officials to address the threats to student rights posed by its "Dear Colleague" letter from 2011.
In the 19-page letter sent in 2011 to schools and colleges nationwide, Russlynn Ali, assistant secretary for civil rights, said, "[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred)."
The letter went on to describe how a "higher standard" of proof, such as "clear and convincing," are not "equitable under Title IX."
Thus, without much fanfare or public debate, the interpretation of Title IX by the Department of Education’s Office of Civil Rights was set as the "approved" way of conducting justice in America’s schools and colleges.
FIRE wrote to the Obama administration at the time, raising objections because of the potential for abuse of students’ rights. Months later it wrote again.
Now FIRE has been joined by others in a letter to Russlynn Ali that explains her document "fails to provide a clear, controlling, and constitutional definition of discriminatory harassment in the educational context."
"This omission is glaring. The DCL’s silence on this crucial aspect of an institution’s dual obligations under Title IX and the First Amendment confuses an issue that previously had some clarity and perpetuates the persistence of unconstitutional restrictions on student speech in the guise of overbroad or vague harassment policies," the FIRE letter said.
"To provide much-needed definitional clarity, while simultaneously recognizing an institution’s twin obligations to protect free speech and prevent harassment, we once again urge OCR to make clear that institutions satisfy Title IX by adopting no more and no less than the definition of prohibited harassment in the educational context set forth by the Supreme Court of the United States."
The letter also notes that under the Obama administration requirements, the accuser also must be provided a channel for appeal. That means one person facing an accusation – and cleared by a judicial process – would have to defend himself or herself a second time.
"For a student, the consequences of being found guilty of sexual harassment or sexual assault are devastating. With so much at stake, it is simply unfair to force a student to defend himself or herself multiple times against the same accusation of sexual misconduct," said the letter.
The letter also points out the requirement for the "judiciary’s lowest standard of proof."
The requirement conflicts with U.S. Supreme Court precedent that has concluded when a person’s good name, reputation, honor or integrity are challenged, due process requires "precautions against unfair or mistaken findings."
The letter said, "It is unconscionable to require that those accused of such serious violations be found merely ‘more likely than not’ to have committed the offense in question."
Signers included Joseph Cohn of FIRE; Cynthia Bowman of Cornell; Kevin Clermont of Cornell; David Cortman of the Alliance Defense Fund; Suzanne Delaney of Feminists for Free Expression; Christopher Finan of American Booksellers Foundation for Free Expression; Roy Gutterman of the S.I. Newhouse School of Public Communications; David Horowitz of the David Horowitz Freedom Center; KC Johnson of Brooklyn College; Malcolm Kline of Accuracy in Academia; Eli Lehrer of the Heartland Institute; John Leon of the Center for the American University at Manhattan Institute; Michael McConnell of Stanford; Anne Neal of the American Council for Trustees and Alumni; Cary Nelson of American Association of University Professors; Glenn Ricketts of National Association of Scholars; Jane Shaw of John William Pope Center; Christina Sommers of American Enterprise Institute; Nadine Strossen of New York Law School; and Sue Udry of Defending Dissent Foundation.
FIRE President Greg Lukianoff said the Office for Civil Rights of the Department of Education "needs to understand that ignoring the threats to due process and free speech on campus it created with its April 4, 2011, letter will not make those threats disappear."
"We hope that OCR finally decides to answer the concerns voiced by this broad coalition of groups and individuals that spans the political and ideological spectrum," he said.