This Week in FIRE News: Campus Due Process Disasters Hit the Headlines

July 22, 2011

The decline of procedural fairness on campus is a growing concern for FIRE these days, made evident by the number of cases regarding sexual assault we’ve encountered since Russlynn Ali, assistant secretary for the Office for Civil Rights (OCR) of the Department of Education, sent her April 4 letter to schools across our country. The letter requires all colleges and universities that receive federal funding to employ our judiciary’s lowest evidentiary standard, the "preponderance of the evidence" standard, in hearings for students accused of sexual misconduct. FIRE has repeatedly warned that this low standard will drastically impact students’ fundamental rights, and we were right.

In Wednesday’s New York Post, FIRE Director of Speech Code Research Samantha Harris tells the story of a student (who wishes to remain anonymous) at Stanford University who was found guilty of sexual assault solely because Stanford determined that his partner was intoxicated (as was he). Stanford policy states that students cannot consent to sex-even with a spouse-if "intoxicated" to any degree. What’s more, Stanford lowered its standard of proof from "beyond a reasonable doubt" to the "preponderance of the evidence" standard after receiving the April 4 OCR letter and in the middle of the student’s case.

In response, Professor KC Johnson wrote an article on Minding the Campus praising FIRE for exposing the biased materials Stanford University uses to "train" those in charge of adjudicating allegations of sexual harassment and sexual assault. These materials (excerpted from Lundy Bancroft’s book, Why Does He Do That?: Inside the Minds of Angry and Controlling Men) teach student jurors that "act[ing] persuasive and logical" is a sign of guilt, that "[t]he great majority of allegations of abuse-though not all-are substantially accurate," and that they should be "very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence." Johnson writes, "Stanford’s entire process is malicious. The only way that the university could protect a student from ‘malicious prosecution’ would be to invalidate its entire judicial structure." Tim Cavanaugh has more at Reason.

In related news, the University of North Dakota (UND) has found former student Caleb Warner guilty of sexual assault despite the fact that local police refused to charge him with a crime and instead charged his accuser with lying about the incident. Warner has been banned by UND from stepping foot on any state public campus for three years. FIRE Co-founder and Chairman Harvey Silverglate took to The Wall Street Journal to emphasize that in finding Warner guilty, UND used the preponderance of the evidence standard imposed by OCR. Harvey argues that this new requirement commands universities "to scrap fundamental fairness in campus disciplinary procedures for adjudicating claims of sexual assault or harassment." 

Former FIRE intern Nico Perrino provided a student perspective to the OCR letter and Warner’s case in a column for Indiana University – Bloomington’s Indiana Daily Student yesterday. Nico calls attention to the fact that lowering the standard of evidence to make it more likely that some innocent students will be punished is not the way to correct inefficiencies in adjudicating campus accusations of sexual misconduct. "While it might seem with these actions the Department of Education should be commended for tackling such an issue, it has, in fact, decided to use a regulatory wrecking ball when perhaps an exacting scalpel needed to be applied," Nico writes. Reason‘s Jacob Sullum has more.

Here at FIRE we argue that sunlight is the best disinfectant, and we hope the negative media attention on OCR and these cases will persuade more people to take action-students’ rights across the nation depend on it.