Last Friday, The Harvard Crimson updated readers on Harvard University’s ongoing study of its sexual assault policies, noting that the university’s policy options have been affected by the controversial April 4, 2011, "Dear Colleague" letter from the Department of Education’s Office for Civil Rights (OCR). Zeroing in on the ongoing debate about OCR’s decision to mandate the use of the "preponderance of the evidence" standard of proof in campus sexual misconduct proceedings, Crimson staff writer Rebecca D. Robbins writes:
As Harvard’s peer institutions move to update their sexual misconduct policies by lowering the standard of evidence required for a guilty conviction, two lawyers interviewed for this article say that these universities’ changes may encourage Harvard to follow suit.
The University is currently in the midst of a two-year process of reviewing its sexual assault policies to ensure that it is compliant with federal anti-discrimination law.
In April 2011, the Office for Civil Rights released a "Dear Colleague" letter outlining stricter guidelines for colleges and universities for dealing with sexual assault complaints in the wake of a stream of Title IX complaints filed against institutions of higher education, including Harvard Law School.
Last month, both the University of Pennsylvania and Cornell announced that they would modify their sexual assault policies, joining Yale and Stanford in altering their standards in response to the letter. Both the University of Pennsylvania and Cornell adopted the lower standard of "preponderance of the evidence" mandated by the "Dear Colleague" letter, which allows an accused student to be found guilty if the institution is at least 51 percent certain of his or her responsibility for an alleged incident. Previously, some institutions, including Harvard Law School and Princeton, had used a higher "burden of proof" standard, which required "clear and convincing" evidence of the accused student’s guilt.
FIRE has led the charge against OCR’s "preponderance of the evidence" mandate, pointing out that reducing the standard of evidence used in campus sexual misconduct hearings will result in more incorrect verdicts, a less reliable judicial process for all parties, and reduced due process rights for accused students. And as I’ve noted here on The Torch recently, OCR’s mandate has forced institutions like Cornell University and the University of North Carolina to establish a "two-tiered" judicial system, as students accused of sexual misconduct face a lower burden of proof than students accused of other conduct violations. For our full argument, check out FIRE’s May 5, 2011, response to OCR, our FAQ, or our "Dear Colleague" letter case page.
Speaking to The Crimson, Professor Peter Lake, Director of the Center for Higher Education Law and Policy at Stetson University College of Law, noted the pressure felt by institutions like Harvard to comply with the federal mandate, despite potential reservations about its effect on student rights:
Lake said that the release of the "Dear Colleague" letter sparked a flurry of changes among many institutions, who swiftly revised their policies in accordance with the new Title IX regulations.
"Certainly schools felt a tremendous pressure to scramble as quickly as they could to figure out how to come into compliance," Lake said.
Lake said he anticipates a legal battle about the constitutionality of the "preponderance of the evidence" standard, which he thinks may violate accused students’ constitutional right of due process.
Lake added that he thinks the "Dear Colleague" letter puts institutions like Harvard in a difficult position.
Colleges and universities must face the question: "Do I hold out and violate a federal mandate and face sanctions, or do I potentially violate the due process rights of students?’" Lake said. "That’s a heck of a choice." [Emphases added.]
We share Lake’s concerns. By eliminating institutional autonomy to implement appropriate evidentiary standards, OCR has delivered schools like Harvard an impossible ultimatum: Reduce student due process rights, or lose federal funding.