NOTE: The article excerpted on this page is from an outside publication and is posted on FIRE's website because it references FIRE's work. The viewpoints expressed in this article do not necessarily represent FIRE's positions.
The Obama administration is holding colleges’ feet to the fire when it comes to how they handle reports of sexual violence and harassment.
The tougher stance comes after federal officials saw problems at a number of schools that led some victims of sexual violence to feel revictimized by campus policies and procedures. The Obama approach also follows years of perceived inattention to the issue by the Bush administration.
With the school year under way at many colleges, at least one student – at the College of New Jersey – has already told authorities she was the victim of a sexual assault.
All colleges are now on notice that they must ensure they’re responding promptly and fairly to reports of sexual misconduct. Federal officials have launched investigations based on information that concerns them about certain campuses.
But some academic-freedom advocates say the sheriff has gone too far. In particular, they’re concerned that the standard of proof the Obama administration is urging will wrongly take down some of the accused.
US officials want "to sort of shortcut the process of justice by making it easier to convict," says Robert Shibley, senior vice president of the Philadelphia-based Foundation for Individual Rights in Education (FIRE).
In April, the US Department of Education’s Office for Civil Rights (OCR) sent a "Dear Colleague" letter to colleges and schools. It clarified specific ways that sexual violence should be addressed under Title IX, a 1972 gender-equity law governing educational institutions that receive federal funds. Among other things, the letter addressed appropriate time frames for the resolution of cases and the need to offer the accuser and the accused equal rights. It also reiterated that if a hostile environment exists – for instance, a violent incident that negatively affects a student’s learning experience – the school must take steps to support the victim and cure that environment.
"It has the potential to really change campus climates if universities take it as the wake-up call it’s intended to be," Ms. Maatz says.
Some higher-education lawyers say the new letter is lengthy and burdensome to schools and should have taken the form of regulations subject to public comment.
One big concern is that the letter tells campuses they must use a "preponderance of the evidence" standard when weighing allegations. That means an official or disciplinary body needs to be just over 50 percent sure the incident occurred.
To require this of campuses that have been using a higher burden of proof is not only to micromanage them, but also to make it more likely that the falsely accused will be punished, says FIRE’s Mr. Shibley.
Some campuses had used a "clear and convincing" standard, which requires about 75 percent certainty, he says. A few, such as Stanford, had even required "beyond a reasonable doubt," similar to a criminal trial.
Shibley cites the case of a University of North Dakota student who was found guilty of sexual assault in a campus procedure using the preponderance standard. The university suspended him. Meanwhile, the police had decided to charge his accuser with filing a false claim, and she left to dodge the arrest warrant, Shibley says.
Russlynn Ali, head of OCR, denies that the standard is unfair: "We are firmly committed to respecting students’ due process rights and believe wholeheartedly that the requirements in the ‘Dear Colleague’ [letter] are entirely consistent with those rights."
About 80 percent of colleges were already using the preponderance standard, Ms. Ali estimates. For Title IX enforcement, she adds, it’s a longstanding practice.
"To go with a standard higher than preponderance of the evidence would tilt the scales inappropriately in favor of the accused individual," says Saundra Schuster, who trains campus Title IX coordinators as a partner at the National Center for Higher Education Risk Management in Malvern, Pa.
The preponderance standard works well at the University of Tennessee at Chattanooga, says Sara Peters, director of the Women’s Center there. Rulings have come down at times in favor of the accuser, and at other times in favor of the accused. "If you have a judicial board that is trained to look at the evidence and really think it through, then it should work as intended," she says.
Even with that standard, Ms. Peters says, it’s difficult to get apparent victims to proceed with either criminal or campus-misconduct charges.
One area of confusion on some campuses, says Ali of OCR, has been how best to coordinate in cases where local police are involved.
For example, a general counsel at one university had been threatened with obstruction-of-justice charges by police when he tried to conduct an investigation of a rape charge, Ali says. OCR helped the university and the police work up an agreement allowing three to 10 days for police to gather forensic evidence such as DNA before the campus started its investigation. But it also included the provision that the university would offer the alleged victim immediate support.
On the flip side, "we had heard of universities deferring entirely to law enforcement," Ali says. In one case, the alleged perpetrator graduated before the university even began its Title IX investigation.
In addition to the April letter, OCR has been conducting inquiries and compliance reviews, prompted by concerns at specific schools.
OCR reached a settlement with the University of Notre Dame in July, which came about partly because a student at the university’s sister school killed herself after she had filed a report accusing a Notre Dame student of sexual assault. The university agreed to better publicize how to report sexual harassment and violence. It also agreed to make clear that it uses a "preponderance of the evidence" standard and would resolve cases within 60 days, except in extraordinary circumstances.
Coming on the heels of the OCR letter, the settlement is "a shot across the bow to every university in the country," reinforcing the need to comply, says Robert B. Smith, an education specialist at LeClairRyan law firm in Boston.
OCR is also conducting compliance reviews related to sexual violence at the entire 64-campus system of the State University of New York, the University of Massachusetts at Amherst, Ohio State University, the University of Virginia, as well as the West Contra Costa Unified School District in California. The reviews are based, in part, on large numbers of reported assaults, concerns that have been raised about procedures and policies, or, in one case, a gang rape, Ali says.
Moreover, Yale University is being investigated based on a complaint to OCR that the college hasn’t adequately addressed students’ charges of sexual harassment.
Ali says long-term civil rights staffers in her office have commented that they’re seeing unprecedented levels of change and a strong desire among colleges to stamp out sexual violence and harassment, but there’s a long way to go.
"It really will require a culture shift writ large," she says. "Can the federal government and civil rights laws help? For sure. But I wouldn’t suggest that our enforcement is a panacea."