On Friday, FIRE submitted a written comment (PDF) to the White House Task Force to Protect Students from Sexual Assault explaining that the due process rights of college and university students must not and need not be sacrificed in the effort to better respond to the serious problem of sexual assaults on campus. Brooklyn College professor and Minding the Campus contributor KC Johnson has also submitted a comment to the Task Force detailing his concerns about due process in campus hearings, arguing against some of the commonly-cited justifications for the Office for Civil Rights’ current mandates.
For example, analogizing a campus disciplinary hearing to a civil suit in order to justify using the “preponderance of the evidence” standard of proof, Johnson argues, is likely to result in more false findings of guilt while still leaving nobody really satisfied with the system:
For actual rapists, of course, [expulsion] is a highly insufficient punishment, since even if they’re expelled from school and lose future employment opportunities, they won’t go to jail. But for the falsely accused (and convicted), an incorrect disciplinary judgment will have a shattering, lifelong effect. That fate applies even to those convicted for offenses that campuses describe as sexual assault but that few people off campus would recognize as such. At Occidental, for instance, affirmative consent can sometimes not be a defense against a rape charge, since the college holds that in sexual intercourse, “‘Yes’ may not always mean, ‘Yes.'” Or take Yale, whose definition of intimate partner violence includes “economic abuse” between roommates. Yet on their transcripts, students convicted under such standards would nonetheless be branded as rapists.
Johnson further questions whether this lower evidentiary standard results in more accurate findings:
If weakening due process made it more likely that college disciplinary tribunals would reach the truth, perhaps the change would make sense. But the OCR has presented no evidence that such an outcome is related to adjudicating cases by a preponderance-of-evidence standard.
Read the rest of Johnson’s comment on Minding the Campus.