Robert B. Smith is a partner in the Boston office of DeMoura | Smith LLP. This article was originally published by RealClearPolitics.
Back in April, the U.S. Department of Education’s Office of Civil Rights (OCR) issued a letter ordering colleges and universities to get more aggressive about investigating and prosecuting alleged incidents of sexual assault and harassment. But while the 18-page missive began with the cordial salutation “Dear Colleague,” it was anything but a casual communication sent from one friend to another. Backed by the full force of the law, this detailed directive set new standards for the resolution of sexual assault claims at colleges and universities. It was formulated, moreover, without hearings, comment periods or other mechanisms aimed at avoiding unintended consequences that could cause more harm than good.
The effects of the letter, which called for dropping higher evidentiary requirements in favor of the lesser “preponderance of the evidence” standard, were immediately felt. As reported in The New York Post, for example, a student court at Stanford University learned of the letter and then switched to the preponderance standard while still in the midst of a sexual assault case. The result was that the accused, whose case had been dropped by the prosecutor and police in Palo Alto, Calif., was convicted by the student-run court. In July, meanwhile, OCR announced that it had reached a settlement with the University of Notre Dame about its handling of sexual harassment cases. Critics said the settlement showed how OCR aimed to apply the new rules “cookbook style” regardless of the complexities involved. In May, the Foundation for Individual Rights in Education (FIRE) sent a letter to OCR noting that its members were “troubled by the letter’s failure to explicitly instruct administrators that public universities may not violate the First Amendment rights of students and that private universities must honor their promises of freedom of expression to students.” Worse still, FIRE asserted, these guidelines are likely to erode due process for those accused of these crimes. As FIRE’s letter noted, “the rights of those accused cannot be sacrificed simply as a function of the accusation itself.”
If the matter at hand is a minor traffic accident, a breakdown of due process might be unfortunate, but it would not be life-shattering for the party found to be at fault. In matters as serious as rape or sexual harassment, however, due process, if anything, is more critical, not less. Any competent detective will tell you that these cases often reduce to “he said, she said” arguments and involve complex questions relating to anonymity, racial bias, intoxication, subjective interpretation of sexual intent and behavior, and more. Forcing educators to be criminal investigators charged with sorting out such psychosexual dynamics is a tall order, especially in light of OCR’s 60-day deadline for the resolution of these cases. These are not crimes that occur at high noon in front of a crowd of witnesses. Rapes and sexual assaults usually take place out of the way, in the dark, with drugs and alcohol in the mix. What if the incident occurs over spring or winter break? What if the complaint is filed the day before school ends in May and all of the witnesses have gone home for the summer? What if the local district attorney says to the university “Your kangaroo court had better not talk to my witnesses before I get to them, or I’ll slap you with charges of obstruction of justice and witness tampering.” (Trust me, the DA will not exactly be wringing his hands over whether the university is able to meet OCR’s 60-day deadline.) Backlogs at crime labs are notorious. What happens if DNA analysis takes weeks or months to come back from the lab? While I agree that justice delayed is often justice denied, the complex nature of an investigation into a sexual assault case does not admit of a neat resolution within 60 days. Simply put, OCR’s directive seems rooted in ignorance of the nature of these cases.
FIRE and other critics are right to raise questions about the erosion of due process set in motion by the “Dear Colleague” letter. When I read it, in fact, the image of the scales of justice came to mind, but with a feather on one side and no counterweight whatsoever on the other. What is wrong with the “clear and convincing” evidentiary standard that schools have heretofore used? Is OCR unhappy with the conviction rate? According to the letter, schools must accommodate accusers if they want to avoid being in the same room with the accused. I understand the sensitivities involved here. However, this violates one of our basic principles of justice—that the accused must have the ability to confront the witnesses against them.
Officials from OCR frequently assert that one in five students on college campuses will become the victim of sexual assault. However, this would mean that our college campuses are now vastly more dangerous than the most crime-ridden U.S. cities. According to FBI statistics, for example, Detroit recorded an average of 33 rapes per 100,000 people in 2006. DOE would have us believe that 200 sexual assaults will occur on a campus of just 1,000 people. Does DOE have evidence supporting this crime wave? If so, it should be released forthwith to law enforcement everywhere.
Each of us abhors rapists and harassers anywhere, especially on college campuses, where the prevalence of binge drinking, “date rape” drugs and the like is scandalous and leaves victims helpless. If we want to eradicate these perverse crimes, however, the smartest approach is to ramp up criminal penalties for perpetrators, and to give our law-enforcement agencies more tools and resources with which to nab the bad guys. DAs can serve subpoenas and haul people in front of grand juries. Judicial affairs panels comprised of undergrads and professors of poetry? Not so much. This is not to say, however, that schools cannot play a constructive role. They should work hard to build on-campus cultures that teach people to treat each other with dignity and respect. Ironically, however, as campuses are forced to spend more money on Title IX-related investigations and lawsuits, they may be less able to invest in cultures of respect.
OCR’s job is to enforce the law as passed by Congress by adopting and implementing appropriate regulations. This is serious business and involves immense power and responsibility. Rather than regulate American colleges and universities with the likes of the “Dear Colleague” letter, OCR should take a transparent and thorough approach to such issues, with the usual public hearings and calls for informed factual input by all concerned. Alas, however, what’s done is now done. Unless successfully challenged at great burden and expense, the letter is, de facto, the law.
Still, one is left to ponder the agenda behind it and whether justice truly has been served.