Yes Means Yes–Except on Campus

July 15, 2011

by Harvey Silverglate in The Wall Street Journal

For a glimpse into the treacherous territory of sexual relationships on college campuses, consider the case of Caleb Warner.

On Jan. 27, 2010, Mr. Warner learned he was accused of sexual assault by another student at the University of North Dakota. Mr. Warner insisted that the episode, which occurred the month prior, was entirely consensual. No matter to the university: He was charged with violating the student code and suspended for three years. Three months later, state police lodged criminal charges against his accuser for filing a false police report. A warrant for her arrest remains outstanding.

Among several reasons the police gave for crediting Mr. Warner’s claim of innocence was evidence of a text message sent to him by the woman indicating that she wanted to have intercourse with him. This invitation, combined with other evidence that police believe indicates her untruthfulness, has obvious implications for her charge of rape.

Nevertheless, university officials have refused to allow Mr. Warner a re-hearing—much less a reversal of their guilty verdict. When the Foundation for Individual Rights in Education (FIRE), a civil liberties group of which I am board chairman, wrote to University President Robert O. Kelley to protest, the school’s counsel, Julie Ann Evans, responded. She wrote that the university didn’t believe that the fact that Mr. Warner’s accuser was charged with lying to police, and has not answered her arrest warrant, represented “substantial new information.” In any event, she argued, the campus proceeding “was not a legal process but an educational one.”

Six weeks before FIRE received this letter, Russlynn Ali, assistant secretary for the Office for Civil Rights in the Department of Education, sent her own letter to every college and university in the country that accepts federal money (virtually all of them). In it, she essentially ordered them to scrap fundamental fairness in campus disciplinary procedures for adjudicating claims of sexual assault or harassment.

Ms. Ali’s April 4 letter states that “in order for a school’s grievance procedures to be consistent with the standards in Title IX [which prohibit discrimination on the basis of sex in any educational institution receiving federal funds], the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).” This institutionalizes a low standard previously eschewed by most of the nation’s top schools. It also sends the message that results—not facts—matter most. Such a standard would never hold up in a criminal trial.

Following this outrageous diktat, Cornell University lowered its evidentiary burden in sexual assault cases. Now, determining whether an incident constitutes sexual violence is based on the “preponderance of the evidence” standard, instead of the school’s prior “clear and convincing evidence” test. Stanford followed suit—in the middle of one student’s sexual misconduct hearing. He was promptly found guilty and suspended for two years.

When Yale administrators received the government’s letter, the university was under federal investigation for permitting gender discrimination on campus. The next month, on May 17, Yale announced that it would institute a five-year suspension of a fraternity that had engaged in a puerile but harmless initiation. Parading around campus, blindfolded pledges were told to shout tasteless slogans like “No means yes, yes means anal.”

The university deemed this a sufficiently serious species of gender-based discrimination to justify official censorship. This, despite its “paramount obligation”—Yale’s words—to uphold freedom of expression. And Yale, too, lowered its previous, higher evidentiary standard in sexual assault cases to the bottom rung.

Codes banning “offensive” speech in the name of protecting the sensibilities of what are commonly designated historically disadvantaged groups—and the campus kangaroo courts that enforce them—have long threatened free expression and academic freedom. While real-world courts have invalidated many of these codes, the federal government has now put its thumb decisively on the scale against fairness on issues of sexual harassment and assault.

Caleb Warner now goes without a diploma and carries with him the stigma of a sexual predator. Unfortunately, the government’s policy ensures that his will not be a unique case.

Mr. Silverglate, a lawyer, is the author of “Three Felonies a Day: How the Feds Target the Innocent” (Encounter Books, 2009). He is also the chairman of the board of directors of the Foundation for Individual Rights in Education.

Schools: University of North Dakota Cases: University of North Dakota: Accuser Is Criminally Charged with Lying to Police, But School Refuses to Reopen Misconduct Case U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections