Reflections on AAUP’s Criticism of OCR’s ‘Preponderance of the Evidence’ Standard in Defense of Faculty Rights

By on August 19, 2011

I wrote yesterday that the American Association of University Professors (AAUP) had sent a second letter to the federal Department of Education’s Office for Civil Rights (OCR) in order to extend its criticism of OCR’s new "preponderance of the evidence" requirement when colleges adjudicate cases of sexual harassment. The new, lowered evidentiary standard threatens the free speech and due process rights of faculty members (and students) nationwide, as we have explained in detail. This post looks a little more closely at the AAUP’s letter.

First, it is quite significant that two different units of the AAUP have now expressed their concern about OCR’s new threat to due process on campus. The first letter came from Gregory F. Scholtz, Director of the Department of Academic Freedom, Tenure, and Governance, and the second came from Ann E. Green, Chair of the AAUP’s Committee on Women in the Academic Profession and AAUP President Cary Nelson.

OCR is now in conflict with the AAUP and its Committee A every time a college or university in America dismisses a faculty member for alleged sexual harassment. This is because if OCR won’t reverse course, virtually every college and university in the country will be forced to use the preponderance of the evidence standard, despite the AAUP’s longtime insistence that the more robust standard of "clear and convincing evidence" is the appropriate standard.

As both of the AAUP letters point out, OCR’s new mandate conflicts with the AAUP’s longstanding principles of due process for faculty members facing dismissal. In the AAUP’s first letter, Scholtz wrote:

Since charges of sexual harassment against faculty members often lead to disciplinary sanctions, including dismissal, a preponderance of the evidence standard could result in a faculty member’s being dismissed for cause based on a lower standard of proof than what we consider necessary to protect academic freedom and tenure. We believe that the widespread adoption of the preponderance of evidence standard for dismissal in cases involving charges of sexual harassment would tend to erode the due-process protections for academic freedom.

Indeed, ever since 1957, the AAUP’s Recommended Institutional Regulations on Academic Freedom and Tenure have provided that, in cases involving potential dismissal, "[t]he burden of proof that adequate cause exists rests with the institution and will be satisfied only by clear and convincing evidence in the record considered as a whole." (Emphasis added by Scholtz.)

It should come as no surprise to OCR, then, that Green’s and Nelson’s letter would summarize the situation in this way:

Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member’s career, we believe that the "clear and convincing" standard of evidence is more appropriate than the "preponderance of evidence" standard.

Going forward, schools now must make a choice: Do they choose "preponderance" and avoid putting all of their federal funding in jeopardy under an OCR investigation, or do they choose "clear and convincing" and ignore the strong recommendation of one of the nation’s most venerable voices for academic freedom and the interests of professors? Which will schools choose, the money or the shame?

Some schools have already chosen. For example, Yale evidently found half a billion dollars a year in federal funding hard to pass up (and we already knew that Yale would rather choose shame over academic freedom and free speech).

OCR can avoid this showdown by taking the AAUP’s advice (and FIRE’s advice) and rescinding the preponderance of the evidence mandate. Green and Nelson write that "preserving a higher standard of proof is vital in achieving fair and just treatment for all," and we agree.

Second, I also am very pleased that Green’s and Nelson’s letter reflects FIRE’s concern that OCR’s April 4 "Dear Colleague" letter, which mandates the lower evidentiary standard, also threatens free speech and academic freedom on campus. As we wrote in our own letter to OCR on May 5,

The April 4 letter fails to include any discussion of the free expression considerations involved when evaluating or investigating allegedly harassing behavior. Nor does the letter reference or cite for further guidance OCR’s 2003 "Dear Colleague" letter regarding the intersection of freedom of expression and harassment policies. The 2003 letter was necessitated by a steady stream of lawsuits and controversies regarding the punishment of offensive, unpopular, or "politically incorrect" (but protected) speech on campus as instances of harassment. In the letter, former Assistant Secretary Gerald A. Reynolds addressed confusion regarding the role of OCR regulation with regard to campus speech, noting that "some colleges and universities have interpreted OCR’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications." Assistant Secretary Reynolds made clear that "OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." Assistant Secretary Reynolds further noted that "OCR is committed to the full, fair and effective enforcement of these statutes consistent with the requirements of the First Amendment." (Emphasis added.)

Green and Nelson build on our concern by noting that colleges and universities must be careful to preserve academic freedom when training members of the academic community about sexual harassment:

Effective training must differentiate between appropriate course content and harassment. No policy should inhibit intellectual inquiry. Courses like "The Literature of HIV/AIDS," "Human Sexuality," and gender studies courses that directly address sex and sexuality can make some students uncomfortable. Even a first-year writing class that discusses a topic like female genital mutilation or other controversial topic can create discomfort. Any training for faculty, staff, and students should explain the differences between educational content, harassment, and "hostile environments," and a faculty member’s professional judgment must be protected.  [...] [W]hat might be offensive or uncomfortable to some students may also be necessary for their education.

This is quite right. The AAUP has been making such points for at least 15 years. Green and Nelson cite the AAUP’s 1995 document, "Sexual Harassment: Suggested Policy and Procedures for Handling Complaints," which correctly notes that "[t]he academic setting is distinct from the workplace in that wide latitude is required for professional judgment in determining the appropriate content and presentation of academic material." The special academic environment of the classroom (or even the department meeting) deserves special protection.

As the Supreme Court wrote in Sweezy v. New Hampshire, 354 U. S. 234, 250 (1957):

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. … Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.

Again, we appreciate the AAUP’s strong support of fundamental fairness and academic freedom in higher education. I hope OCR takes our organizations’ concerns seriously. (Disappointingly, OCR has not yet responded to FIRE’s letter of May 5.) Ensuring that colleges and universities fulfill their moral and legal obligation to respond to sexual harassment and sexual assault is a necessary and worthy aim, but the federal government is threatening due process and academic freedom in a misguided attempt to fufill that goal. We don’t need to sacrifice the innocent in order to do a better job of bringing the guilty to justice.

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