Michael Barone Takes on OCR’s Erosion of Campus Due Process

June 22, 2011

Add pundit Michael Barone to the steadily growing list of those concerned about the new federally mandated standard of evidence for campus judicial procedures involving allegations of sexual harassment and sexual violence.

Barone’s latest column for The Examiner, where he is the senior political analyst, takes on the Department of Education’s Office for Civil Rights’ (OCR’s) recent decision to require colleges and universities receiving federal funding (in other words, virtually all institutions of higher learning) to employ the "preponderance of the evidence" evidentiary standard (i.e., more likely than not) when adjudicating complaints of sexual harassment and sexual violence.

This new mandate, announced in an April 4 "Dear Colleague" letter from Assistant Secretary for Civil Rights Russlynn Ali, will be very familiar to Torch readers and should be of deep concern to any citizen concerned about fair hearings on campus. As Barone writes:

The OCR letter includes a requirement that universities adopt a "preponderance of the evidence" standard of proof for deciding cases of sexual harassment and sexual assault. In other words, in every case of alleged sexual harassment or sexual assault, a disciplinary board must decide on the basis of more likely than not.

That’s far short of the requirement in criminal law that charges must be proved beyond a reasonable doubt. And these disciplinary proceedings sometimes involve charges that could also be criminal, as in cases of alleged rape.

Citing FIRE President Greg Lukianoff, Barone points out that the new OCR guidance threatens speech on campus, too:

But more often they involve alleged offenses defined in vague terms and depending often on subjective factors. Lukianoff notes that campus definitions of sexual harassment include "humor and jokes about sex in general that make someone feel uncomfortable" (University of California at Berkeley), "unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people" (Iowa State University) or "elevator eyes" (Murray State University in Kentucky).

All of which means that just about any student can be hauled before a disciplinary committee. Jokes about sex will almost always make someone uncomfortable, after all, and usually you can’t be sure if flirting will be welcome except after the fact. And how do you define "elevator eyes"?

We thank Barone for his attention to this serious threat to individual rights on campus. Torch readers should check out his column in full.

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