FIRE’s central concern regarding OCR’s letter lies with its damaging impact on the due process rights of students accused of sexual harassment or sexual violence. The letter mandates that colleges and universities receiving federal funding employ the "preponderance of the evidence" (i.e., more likely than not) standard, rather than the "clear and convincing evidence" standard, when adjudicating student charges of sexual harassment and sexual violence.
This policy shift means that schools will find accused students guilty when a hearing body is 50.01% confident that the alleged misconduct took place. Curiously, OCR is telling schools simultaneously that sexual violence is a grave and serious matter and that schools must require less evidence in order to satisfy a guilty finding. In our open letter, FIRE points out that not only is mandating this new standard dangerous to accused students whose entire futures are in jeopardy, but that it is also legally unsupported.
Unfortunately, the threat of exclusion from federal funding is a coercive one indeed. In the month since the OCR letter was sent, many schools have already drastically changed their existing policies and procedures to the detriment of their students.
Perhaps the most egregious of these hasty changes took place at Stanford University. Stanford had long used a standard of evidence even higher than the widely used "clear and convincing evidence" standard: the "beyond a reasonable doubt" standard used in criminal trials. That standard was a clear statement of understanding of the seriousness not only of the offense, but of the consequences of being accused and convicted of it. However, one week after receiving OCR’s "Dear Colleague" letter, Stanford President John L. Hennessy authorized an immediate change in the standard of evidence to OCR’s mandated "preponderance" standard, despite the fact that most such changes go through a long process of consultation with the university community.
Stanford is not the only school to embrace a hasty, briefly considered change. Yale University—already under a Title IX investigation from OCR—has changed its standard of evidence to comply with OCR’s mandate. Brandeis University, too, immediately announced its intentions to change from "clear and convincing" to "preponderance" in the wake of the OCR letter.
Last week, the University of Virginia made changes to its proposed policy update initiated in December. These changes encompass not only the new, lower standard of evidence, but also remove all limitations on UVA’s geographic jurisdiction to cover all offenses by any student, anywhere. Today, Virginia Tech and Virginia Commonwealth University expressed their intent to make the "necessary changes" to their policies as well.
But while changes are coming quickly, not all schools are happy about it. While Washington University’s Student Union Senate approved changes to the student judicial code based in part on OCR’s letter, Director of Judicial Programs Tamara King found at least one of the changes "regressive." In removing mediation as an option in sexual assault cases, King feels that some students may opt not to seek help. Nevertheless, the school has made OCR’s desired changes.
But King expressed an awareness and thoughtfulness that bears repeating:
"We’re not just going to make a decision, we’re going to sit down and talk about, figure out which practices to take and really try to do the right thing following the spirit of the law. I think you do a disservice if you don’t sit down and really think about this and process it. That’s why I feel bad for people who are in the middle of a hearing, where some of these things are going to impact that-that’s a horrible scenario to be in."
Stanford, are you listening?
FIRE urges schools to take a step back and a deep breath, and then carefully consider the implications for the fairness of all students-both the accusing students and the accused-before hastily changing policies and procedures in ways that may yield inequity under the guise of equality.