In a stirring piece for The Chronicle of Higher Education, FIRE Board of Advisors member Christina Hoff Sommers takes on the most serious due process problems presented by the U.S. Department of Education’s Office for Civil Rights’ (OCR’s) recent policy guidance to colleges and universities regarding their obligations to address sexual harassment and sexual assault of students. Sommers writes that OCR’s April 4 "Dear Colleague" letter, mandating that federally funded institutions use the "preponderance of the evidence" standard of proof to adjudicate these cases on campus, places universities in a difficult position and compromises campus justice in situations where much is at stake for the careers and lives of students.
Of course, we have made no secret of our disagreement with several aspects of the OCR letter, which was issued by Assistant Secretary for Civil Rights Russlynn Ali—especially the imposition of the preponderance standard of proof to govern such serious, complex matters as sexual assault and sexual harassment. OCR has now mandated that universities discipline students under the lowest standard of proof possible, a mere 50.01% standard that requires that guilt be found if the evidence presented tips only slightly in favor of the accuser. And FIRE has been far from alone in criticizing the policy guidance; commentators from Hans Bader to Roger Pilon to our own Harvey Silverglate have weighed in similarly.
Sommers adds insightful analysis:
How did Ali and her fellow lawyers in the Department of Education manage to find in the Title IX gender-equity statute grounds for demanding colleges to adopt a "preponderance of evidence" standard? That is a mystery. Hans Bader, a former Education Department lawyer, says that nothing in Title IX justifies taking away an accused person’s right to a firm presumption of innocence, requiring clear and convincing evidence. Ali and her colleagues, he suggests, are "legislating through administrative fiat, in a way that is arbitrary and capricious." And dangerous, one might add.
As she writes, OCR’s new guidance abandons the rights of accused students:
Ali’s job as assistant secretary for civil rights is to protect the civil rights of all students, both alleged victims and the accused. Her letter provides detailed guidelines on the steps colleges should take to "minimize the burden on the complainant." Not a word about the burden on the accused or his rights. And it goes to remarkable lengths to discourage colleges from trying to diffuse and ameliorate volatile "he said, she said" confrontations. "In cases involving sexual assault," she instructs, "mediation is not appropriate even on a voluntary basis." The letter is suffused with the notion that college authorities must not use their judgment and discretion but rather become enforcers of legal procedure and harsh justice.
Being a victim of rape is uniquely horrific, but being accused of rape is not far behind. If the person is guilty, then the suffering is deserved. But what if he is innocent? To be found guilty of rape by a campus tribunal can mean both expulsion and a career-destroying black mark on your permanent record. Such occurrences could become routine under the Ali dispensation.
Adding up all of the elements involved, Sommers finds a recipe for disaster:
Deans at institutions including Yale, Stanford, and Brandeis Universities and the Universities of Georgia and of Oklahoma are already rushing to change their disciplinary procedures to meet the Education Department’s decree. Now, on campuses throughout the country, we face the prospect of academic committees—armed with vague definitions of sexual assault, low standards of proof, and official sanction for the notion that sex under the influence is, ipso facto assault or rape—deciding the fate of students accused of a serious crime.
There is much more worth quoting from Sommers’ superb analysis, but rather than doing so I will simply say here that our readers should read her piece in its entirety. Thanks to Sommers and to the Chronicle for continuing the needed discussion of these important issues. We certainly will keep the conversation going here at FIRE.