As Torch readers know, FIRE has been vocal in our opposition to the Department of Education’s Office for Civil Rights’ (OCR) mandate from earlier this year that universities adjudicating allegations of sexual assault and sexual harassment use the weak "preponderance of the evidence" standard of proof, which equates to a "more likely than not" standard, or 50.01 percent likelihood that a person committed an offense.
As we have pointed out, this is an evidentiary standard appropriate for adjudicating parking tickets, not allegations of sexual assault and rape, which on campus often involve blurry issues of consent, alcohol use, lack of witnesses and evidence, and "he said, she said" contradictions. The forced use of this standard only exacerbates the problem with having plainclothes university officials—people who are used to sanctioning students for cheating on exams, running diversity seminars, and overseeing residence hall advisors—investigate, adjudicate, and ultimately mete out any punishment in cases involving criminal misconduct. If universities are to handle matters of sexual assault and rape at all, to make sure that justice is served, the standard of proof should not be lowered. Doing so only adds greater uncertainty into the process and the eventual finding. These are, after all, cases with much at stake: for alleged victims, there is the legitimate interest in bringing the accused to justice if the accused is guilty; for alleged perpetrators, there are the legitimate interests in protecting one’s educational and professional career, and in avoiding the stigma attached to being labeled a sexual offender, if the accused is innocent.
But what about the question of whether universities should be handling these types of cases to begin with? I’ve taken on this question to some extent in my legal scholarship, but let me allow someone else to offer her perspective: Naomi Schaefer Riley, a contributor to The Chronicle of Higher Education‘s blog, Brainstorm. Riley wrote the following blog post last week (reprinted here in its entirety) in the wake of the sex abuse scandal at Pennsylvania State University:
If you want to know the lesson from the Penn State scandal, it’s not that we should shut down college athletics (though I wouldn’t be crying if we did). It’s not that people worship college football too much (though perhaps they do). It’s not that powerful men are all evil and always take advantage of their positions. The lesson is that colleges should not be in the law enforcement business. I’ve said it on this blog before and I’ll say it again. I would not trust a single college administrator to conduct an investigation into a criminal matter. They don’t have the interests of the victim in mind. They don’t have any interest in protecting the rights of the accused. Their interest is in protecting the school’s reputation (and their own jobs). That is it.
The reason we have police officers and public defenders and prosecutors and judges is that we think that it is hard to catch criminals and hard to ensure that justice is properly served. College administrators and faculty should be trusted to investigate plagiarism and, maybe, petty larceny. But that’s about it, folks. Rape? Assault? Child abuse? What would possess anyone to think that these matters can be taken care of with an internal investigation?
There are many things that one can take away from the Penn State case, which not only is a sensitive and difficult one, but one that is still taking shape as all of the facts come out. And many of those lessons do not relate to FIRE’s work defending freedom of speech, academic freedom, and due process on campus. Universities do need room to take emergency action when there is an immediate danger on campus. But Riley is absolutely right in arguing that the case highlights the importance of allowing law enforcement to do its job when it comes to sexual assault, rape, and other alleged criminal conduct. I hope that lesson truly sinks in.