This weekend, Justin Pope of the Associated Press came out with a pair of thorough and insightful articles about the "legal minefield" in which universities currently find themselves when it comes to addressing claims of sexual assault on campus. As Pope explains,
Typically, colleges enjoy wide leeway in responding to student misconduct, whether that means using a disciplinary board to enforce their own rules or simply punting the matter to law enforcement. But as Title IX is now interpreted — and would be reinforced under a new version of the Violence Against Women Act awaiting a Senate vote — colleges must respond if a sexual assault is reported, even if prosecutors refuse to get involved. Moreover, they face often precise instructions from the government for conducting their investigations and proceedings, and even the standard of proof to use.
Many of those precise instructions, of course, come from the April 4, 2011, "Dear Colleague" letter from the Department of Education’s Office for Civil Rights (OCR). That letter sent shock waves through the civil liberties community when it mandated that colleges and universities adjudicate claims of sexual assault and sexual harassment on campus using the "preponderance of the evidence" (roughly 50.1% proof) standard—the lowest evidentiary standard used in our judicial system. OCR’s letter also requires that if a university’s judicial system gives the accused the right to appeal an unfavorable decision, it must give the accuser the same right, creating something similar to the situation of "double jeopardy" that is prohibited in courts of law.
Colleges that fail to meet their Title IX obligations risk losing federal funding. They also risk extraordinarily costly lawsuits:
Title IX cases represent "the most expensive lawsuits in history" against colleges, said Brett Sokolow, managing partner of the National Center for Higher Education Risk Management. … "It drives — not hysteria, that’s not the right word — but nearly that," Sokolow said. "It’s such a fear-based reaction that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX."
This "fear-based reaction" has serious consequences for everyone involved. As FIRE has strenuously argued, lowering the standard of proof does not benefit victims or result in "more justice"—it simply creates greater room for human error and bias to infect the process, reducing people’s confidence in the outcome of proceedings. If, in an effort to avoid liability, university judiciaries categorize every drunken or regrettable sexual encounter as sexual assault, this dangerously trivializes actual cases of sexual assault and rape, to the great detriment of victims everywhere.
Obviously, the reduction of due process rights has grave consequences for the accused, as well. As FIRE Senior Vice President Robert Shibley told Pope,
"You’re talking about effectively convicting somebody and saying they’re a rapist," said Shibley, who notes such a charge is potentially life-altering now that colleges, reluctant to pass problem students on to other schools, are increasingly affixing disciplinary notes to the transcripts of students they expel, rather than simply letting them walk away. "You take a really huge stigma with you your entire life."
These consequences are evident in the case of Caleb Warner at the University of North Dakota (UND), whose story is featured heavily in one of Pope’s two articles. Warner, you may remember, was found responsible for sexual assault by UND using the preponderance of the evidence standard. By contrast, when local police investigated the case, they determined that his accuser had in fact filed a false report with law enforcement, and issued a warrant for her arrest. When Warner then asked UND to reconsider his case, the university refused until FIRE and Warner’s mother took the case public. UND ultimately vacated the sanctions against Warner, but not before his life was dramatically altered:
He’s driving a delivery truck for a national shipping company, trying to pay back legal bills to his family, and unsure if he’ll ever return to college.
After the April 4 "Dear Colleague" letter, colleges and universities rushed to adopt the preponderance standard, with Stanford University even changing the applicable standard in the middle of a student’s disciplinary proceeding. Interestingly, Pope writes, Princeton University is trying something different:
Princeton University will continue to run campus disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance standard to determine where there’s been a Title IX violation.
In theory, Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering its requirement to provide support for the victim (while the OCR guidance says colleges may have to take steps to ensure victims are separated from their assailants in classes and dorms, it doesn’t tell colleges how to punish).
Some commentators (such as Boston attorney Wendy Murphy, who has criticized the "presumption of innocence" in criminal cases "because you know what that sounds like to a victim? Presumption you’re a liar") are critical of Princeton’s approach. What is surprising is that it sounds as if OCR might potentially be open to such a system:
[Assistant Secretary for Civil Rights Russlynn] Ali, the head of OCR, indicated she wasn’t necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them "case by case"— suggesting colleges may have more flexibility than they realize.
These two articles, which feature interviews with many of the key players in the current debate over how Title IX should apply to claims of sexual assault on campus, are an important read for anyone interested in this issue.
Schools: University of North Dakota Princeton University 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