Nico Perrino, a 2010 FIRE summer intern and current undergraduate at Indiana University – Bloomington (IUB), has been working to reform IUB’s speech codes since returning to campus from his internship. Today, Nico has a column in the Indiana Daily Student calling attention to the inroads against student due process rights on campus made by the Department of Education’s Office for Civil Rights’ (OCR’s) recent "Dear Colleague" letter. Nico writes in his column:
The letter, sent to all public institutions of higher education, mandates that universities, which receive federal funding, adopt the "preponderance of evidence" standard when investigating reports of rape or sexual misconduct. If a university does not adopt this standard, it risks losing all of its federal funding.
While it might seem with these actions the Department of Education should be commended for tackling such an issue, it has, in fact, decided to use a regulatory wrecking ball when perhaps an exacting scalpel needed to be applied.
By forcing universities to use the preponderance of the evidence standard – the lowest standard of proof – the Department of Education has guaranteed more innocent students will be found guilty, something that would not occur if it had mandated a more exacting standard of evidence.
Nico also calls attention to FIRE Co-founder and Chairman Harvey Silverglate’s recent Wall Street Journal editorial on the serious injustices the University of North Dakota heaped on former student Caleb Warner. Using the preponderance of the evidence standard (our judicial system’s lowest), UND found Warner guilty of sexual assault and suspended him for three years from the campus. Grand Forks police, meanwhile, examining the same evidence, not only declined to pursue charges against Warner, but issued a warrant for his accuser’s arrest after determining she had filed a false police report. UND is apparently untroubled by this grave discrepancy, and has refused to grant Warner a rehearing.
If inefficiencies and injustices exist in prosecuting campus accusations of sexual assaults, lowering the standard of evidence to make it more likely that some innocent students will be punished is not the way to correct them. As Nico says: "Trading one set of victims for another does service to no one."
Had Nico had a few more days to publish his piece, he may well have included the story of the appalling injustices in Stanford University’s judicial system, exposed yesterday by FIRE’s press release and Samantha Harris’ op-ed in the New York Post. Among the many violations of due process and fundamental rights perpetrated by Stanford was lowering the standard of evidence used in one student’s case while the case was still in progress, because Stanford interpreted OCR’s new guidance as a requirement that it must change the standard immediately.
Of course, Stanford didn’t need help from OCR to create an unjust process: As FIRE revealed yesterday, the training materials provided to the jurors in Stanford’s sexual assault cases tell members to be "very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence," and warns that "act[ing] persuasive and logical" is a sign of guilt. This is hardly appropriate "training" to give to supposedly neutral fact-finders.
If you’re outraged by the injustices taking place at UND and Stanford, write to UND President Robert Kelley and Stanford President John Hennessy, and demand that they correct the grave violations of basic rights taking place at their universities. Learn more by visiting UND’s case page here and Stanford’s page here.
Thanks to Nico for his help raising the public’s awareness of the real—and now fully realized—threats from OCR to student rights.