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 Daily Caller
A large organization of university professors voiced its opposition yesterday to a new Department of Education policy lowering the standard of guilt for sexual misconduct cases on university campuses.
The American Association of University Professors sent a letter to Education Department’s Office of Civil Rights objecting to the office’s new standards, which the office rolled out in April.
The Office of Civil Rights now requires all universities which receive federal funding to use a “preponderance of evidence” standard in grievance procedures involving sexual misconduct, rather than the more strict “clear and convincing” evidence standard.
In an official letter, the OCR said the higher standards of guilt “are inconsistent with the standard of proof established for violations of the civil rights laws, and thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”
Advocates of the new rules say universities have not devoted enough resources and attention to stopping sexual assaults. The AAUP countered that lower standards could damage academic freedom and due-process rights for university faculty.
“Since charges of sexual harassment against faculty members often lead to disciplinary sanctions, including dismissal, a preponderance of evidence standard could result in a faculty member’s being dismissed for a cause based on a lower standard of proof that what we consider necessary to protect academic freedom and tenure,” said Gregory Scholtz, the associate secretary and director of the AAUP’s academic freedom department.
The change has also drawn the ire of FIRE — Foundation for Individual Rights in Education — a group that advocates for civil liberties on college campuses. (RELATED: Sen. Tester campaign accuses CWA of lobbying against child porn protections)
FIRE vice president Robert Shibley said the lower guilt standard, the same one used in civil court cases, will lead to problems for the accused.
“It opens the door to the possibility of a lot of false convictions, and we already have examples of that,” Shibley said. “It’s particularly scary when you consider cases of mistaken identity. You might think you’ve got the guy, but it could just be someone who looks like him.”
Shibley said FIRE is also concerned about a second provision in the new rules that allows accusers, as well the accused, to appeal university decisions.
“What’s going to happen is you’re going to have double-jeopardy and triple-jeopardy,” Shibley said. “You can’t do that if you’re the victim of the most grievous crimes. It’s sort of weird to think that these cases could just keep going and going.”
The U.S. Department of Education did not respond to requests for comment.