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Back to September Ed Reporter

Education Reporter
NUMBER 308 THE NEWSPAPER OF EDUCATION RIGHTS SEPTEMBER 2011

Guilty Until Proven Innocent
Yet another Title IX directive issued by the Education Department's Office for Civil Rights (OCR) has colleges scrambling to revamp their sexual harassment and assault policies before the beginning of the fall semester. Russlynn Ali, assistant secretary for the OCR, sent the "Dear Colleague" letter to all colleges and universities that receive federal aid — all but two in the U.S. — essentially directing them to scrap basic rules of fairness in disciplinary procedures for alleged sexual harassment or sexual assault.

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Though the directive doesn't have the force of law, it does carry the threat of losing federal money for noncompliance. Both public and private higher ed institutions have become heavily dependent on federal funds, to the tune of $41.3 billion during the 2009-2010 academic year. Yale alone received more than $510 million for research and training initiatives during that timeframe, and the University of California at Berkeley received a comparable amount. That kind of money tends to encourage ready compliance rather than principled defiance.

The most troubling aspect of the directive, say critics, is a requirement that schools adopt a "preponderance of the evidence" standard in sexual harassment and sexual assault cases, replacing the traditionally accepted "clear and convincing" standard employed by many campus judiciaries. The "preponderance of evidence" is the lowest possible evidentiary standard, requiring only that a disciplinary committee believe the defendant is "more likely than not" to be guilty of the charges, i.e. there is a 50.01% likelihood of guilt. The OCR letter explicitly ruled out the use of higher standards of proof, claiming that they are "not equitable under Title IX."

Greg Lukianoff, President of the Foundation for Individual Rights in Education, is among those who believe the new OCR regulations are unjust. "Students accused of serious crimes like rape should not be tried under the same standard of proof used for a parking ticket," he said. "This is a dangerous and wrongheaded idea that will undermine the accuracy and reliability of the findings of campus courts."

Former Education Department lawyer Hans Bader also disputes the OCR's assertion that the "prompt and equitable resolution" of student sexual harassment or assault complaints require use of the minimal "preponderance of evidence" standard. Bader says that absolutely nothing in Title IX justifies denying an accused person's right to the presumption of innocence and the requirement of clear and convincing evidence to support his conviction. He suggests that Ali and her colleagues are "legislating through administrative fiat, in a way that is arbitrary and capricious."

The OCR's new interpretation of Title IX also "strongly discourages" other basic elements of due process for the accused, including permitting the defendant to question or cross-examine his accuser during the hearing. In addition, if the school provides an appeals process for the defendant, it must also allow the accuser to appeal, subjecting the defendant to double jeopardy.

Although being found guilty of rape by a campus tribunal won't land a man in jail the way being found guilty in a criminal court would, the consequences are still quite serious. A student convicted of sexual assault is likely to be expelled, and will have trouble gaining admittance to another college. He may also be barred from graduate or professional school and from employment in certain government agencies. Added to these career-destroying consequences are a loss of reputation and possible criminal prosecution.

Getting at the truth of he-said, she-said cases is tricky business even for police and attorneys trained in fact gathering and evidence analysis, particularly when alcohol and hazy memories are involved. But the OCR now requires campus tribunals originally designed to decide accusations of plagiarism and campus drug violations to adjudicate the equivalent of felony criminal charges. These panels are typically composed of professors, administrators, and possibly a student or two — none of whom has the training and resources to investigate and adjudicate felonies. "We've been lured into doing something in a criminal justice model that the criminal justice system itself hasn't been able to deal with," said Peter F. Lake, director of the Center for Excellence in Higher Education Law and Policy at Stetson University.

According to Peter Berkowitz, a senior fellow at Stanford University's Hoover Institution, the training campus tribunal members do receive often instructs them to presume men are guilty. "The materials," he said, " are likely to include dubious statistics about the incidence of sexual assault; vulgar generalizations that men are controlling, angry and deceitful; and assurances that women neither lie nor make errors in alleging that they have been sexually assaulted."

OCR secretary Ali justifies implementing such draconian measures against the accused by citing the statistic that "one in five women are victims of completed or attempted sexual assault." Title IX guarantees students a right to an education free of discrimination based on sex, she says, and sexual assault and harassment violate that right.

But are 20% of college women really victims of sexual violence on campus? If so, notes Heather MacDonald of the Manhattan Institute, then college campuses are more dangerous for women than some of America's most violent cities. By way of comparison, there were 36.8 rapes per 100,000 inhabitants in Detroit in 2009, a rate of 0.037%.

A 2003 Bureau of Justice special report, "Violent Victimization of College Students" from 1995-2002, found that there were six rapes or sexual assaults per 1,000 female students per year. That works out to one victim in 40 female students during four years of college. While still far too many, that number is a far cry from the one in five Ali claims.

As it turns out, the study Ali cited was an online survey conducted by the Justice Department, in which 5,446 college women responded to questions about their sexual experiences, both on campus and off. The major problem with this study is that the researchers — not the women — decided whether the women had been assaulted, using an expansive definition of assault that included "forced kissing" and "attempted forced kissing."

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The researchers also automatically counted as assault incidents where the women said they had sexual contact with someone when they were unable to give consent because they were drunk, because according to the researchers, "an intoxicated person cannot legally consent to sexual contact." Significantly, when the researchers asked the young women if they considered what happened to them "rape," three-quarters of the incapacitated didn't. Half of those said they themselves were partially or fully responsible for what had happened.

According to Christina Hoff Sommers of the American Enterprise Institute, the Justice Department itself stamped a disclaimer on every page of the report asserting that it is not a publication of the Department, and did not necessarily reflect the positions or policies of the Department. "Ali, however, treats it as an official government finding and ignores the controversies and ambiguities surrounding her 'one in five' figure," wrote Sommers in a piece for The Chronicle of Higher Education.

Nonetheless, deans at Yale, Brandeis University, Cornell, and the Universities of Georgia and Oklahoma rushed to change their disciplinary procedures to comply with the OCR's decree. Stanford University lowered its evidentiary burden from "clear and convincing" to "preponderance of evidence" in the middle of one student's sexual misconduct hearing. Attorney and author Harvey Silverglate reports that the student was promptly found guilty and suspended for two years.

Faced with the choice of adopting the OCR decree or losing federal funding, most other schools are sure to follow suit. But that doesn't mean we shouldn't call a spade a spade, asserts Sommers. The new regulations "are not enlightened new procedures for protecting students from crime," she said. "They are a declaration of martial law against men, justified by an imaginary emergency, and a betrayal of the Title IX equity law." (The Chronicle of Higher Education, 4-4-11 and 6-5-11; The Wall Street Journal, 8-20-11 wsj.com, 7-15-11; nationalreview.com, 4-5-11; Philadelphia magazine, September 2011)


 
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