Lewis and Shaw: Schools Must Preserve Rights in Sexual Assault Cases

By April 18, 2013

Balancing the rights of the accused and the alleged victim in sexual assault cases is a delicate matter. Harry Lewis, former dean of Harvard College, and Jane Shaw, president of the Pope Center for Higher Education Policy, wrote in Forbes.com yesterday on the ways in which college judiciaries exacerbate this problem.

The Department of Education’s Office for Civil Rights’ April 4, 2011 directive that colleges use the "preponderance of the evidence" standard of proof for determining guilt in sexual misconduct cases has resulted in many of those cases boiling down to nearly arbitrary judgments in "he said, she said" cases. As FIRE has discussed at length, and as Lewis and Shaw write in their op-ed, this leads to a dangerous result:

The lower standard of proof will result in more convictions—of both guilty and innocent individuals. For some, perhaps, a few false positives are merely the collateral damage of outcomes that are more just in aggregate. But this is not a convincing argument in a society that values individual rights. The lower penalty for a conviction in a college court-a "rapist" label and career-shattering expulsion, rather than imprisonment—does not justify a lower standard of proof.

Lewis and Shaw also point to the intersection of unconstitutional speech codes with defective sexual misconduct policies that complicated the Landen Gambill case at the University of North Carolina at Chapel Hill: 

After the disappointed complainant [Gambill] publicly criticized the honor court, the honor court put her on trial for disparagement under the UNC honor code, which prohibits "disruptive or intimidating behavior" if it "willfully abuses, disparages, or otherwise interferes with another." As applied to this woman’s characterization of the honor court, that clause is plainly an abridgement of her First Amendment rights. She then charged UNC with retaliation, another Title IX violation. The university wisely took a step back and suspended the honor court action.

Read the rest of what Lewis and Shaw have to say on Forbes.com.

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