In ‘Wall Street Journal’ Op-Ed, Peter Berkowitz Takes on New OCR Mandates

August 20, 2011

In an opinion piece published in today’s Wall Street Journal, Peter Berkowitz argues that new mandates from the federal Department of Education’s Office for Civil Rights (OCR) reduce due process rights on campus in ways that will have devastating consequences for those falsely accused of sexual harassment and sexual assault. Anticipating the impact of OCR’s new requirements for university judicial processes, Berkowitz argues that "universities are institutionalizing a presumption of guilt in sexual assault cases." 

Berkowitz writes: 

Most egregiously, OCR requires universities to render judgment using "a preponderance of the evidence" standard. This means that in a rape case, a campus disciplinary board of faculty, administrators and perhaps students serves as both judge and jury. Few if any of these judges are likely to have professional competence in fact-gathering, evidence analysis or judicial procedure. Yet to deliver a verdict of guilty, they need only believe that the accused is more likely than not to have committed the crime.

This is the lowest standard. It is much less demanding than "beyond a reasonable doubt," which is used in the criminal justice system, and the intermediate standard of "clear and convincing proof." Yale, Stanford and many other universities have rushed to comply with OCR’s directives.

On campus, where casual sex is celebrated and is frequently fueled by alcohol, the ambiguity that often attends sexual encounters is heightened and the risk of error in rape cases is increased. The consequences for a wrongly convicted student are devastating: Not only is he likely to be expelled, but he may well be barred from graduate or professional school and certain government agencies, suffer irreparable damage to his reputation, and still be exposed to criminal prosecution.

OCR directives reducing critical due process protections on campus carry forward the work of extensive university bureaucracies built to ensure compliance with Title IX. These bureaucracies churn out materials on sexual harassment and sexual violence to train students, faculty and administrators to behave and think properly and to prepare those who serve on disciplinary boards. The materials are likely to include dubious statistics about the incidence of sexual assault; vulgar generalizations that men are controlling, angry and deceitful; and assurances that women neither lie nor make errors in alleging that they have been sexually assaulted.

Read Berkowitz’s full op-ed here.    

Cases:  U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections