by Cathy Young
A joint letter from the U.S. Department of Justice and the Department of Education to the University of Montana earlier this month signals a stepped-up federal initiative to combat sexual assault and harassment on college campuses. While the problems are undeniably real, the government’s proposed solutions may jeopardize such basic values as free speech and protections for the accused.
The letter, which follows a review of that university’s response to sexual harassment and assault, explicitly states that its recommendations are a “blueprint for colleges and universities throughout the country.” This is not just friendly advice from Uncle Sam: Schools that don’t comply may lose federal funding.
The guidelines depart from earlier norms in several important ways. “Unwelcome conduct of a sexual nature,” physical or verbal, is deemed actionable regardless of if it is severe or pervasive enough to limit educational or work opportunities (the legal standard for sexual harassment). Indeed, colleges are specifically warned to act before offensive conduct rises to such levels. Any requirement that such conduct be “objectively offensive” — even to a “reasonable person of the same gender” — is deemed unacceptable. Subjective perceptions must be taken into account as well.
The Foundation for Individual Rights in Education, which defends freedom of speech in academia, notes that these rules theoretically target any sex-related expression that offends anyone, from a classroom discussion of sexual morality to an unwelcome request for a date. Though in practice, as attorney and author Wendy Kaminer points out in a web column for The Atlantic, religious conservatives offended by talk about sexual liberation are not likely to get equal attention.
While criticism of the letter has focused mostly on speech, it also raises disturbing issues of fairness for students accused of misconduct. The government has reaffirmed its position, first expressed in 2011, that campus disciplinary proceedings for reports of sexual offenses must use the lowest legal standard, “preponderance of the evidence”: If those adjudicating the charge believe there is more than a 50-50 chance that it is true, they must find the accused guilty. Previously, most colleges used the higher standard of “clear and convincing evidence.”
The guidelines also mandate proper training about sexual violence for college officials and student jurors who handle such complaints — which, in practice, often amounts to indoctrination in presumption of guilt. At Stanford University, such a training program has used materials stating that one should be “very, very cautious in accepting a man’s claim that he has been wrongly accused.”
Sexual assault can shatter lives, no doubt. But so can wrongful accusations, and sometimes in acquaintance or dating situations telling the two apart is wrenchingly difficult. The Justice Department is currently investigating a complaint about the University of North Carolina‘s handling of sexual assault charges. One complainant, Landen Gambill, says she was devastated when a student panel rejected her claim that her former boyfriend had repeatedly raped her. Meanwhile, Gambill’s ex-boyfriend has told the student newspaper that the case was a harrowing ordeal for him — he was barred from campus for months and grilled with invasive questions about his sex life — and that he still faces harassment from people who know his identity.
Which of them is the real victim? No one knows. Yet federal civil rights officials seem concerned exclusively with the accuser’s rights. Even with no criminal penalties at stake, the imbalance is troubling, however worthy the goal of protecting students from sexual victimization. Civil libertarians, and feminists who support true equality, should oppose this egregious and biased misuse of government power.