Over the past year, FIRE has led a campaign of civil liberties organizations against the Obama administration's infamous "Dear Colleague" letter, which ordered colleges and universities to lower the burden of proof in their on-campus judicial proceedings. The letter demanded that all universities receiving federal funds employ a "preponderance of the evidence" standard (in other words, a 50.1 percent degree of certainty) to determine guilt on allegations of sexual assault.
Given that campus judicial procedures already are tilted, often wildly so, in favor of sexual-complaint accusers, the letter has produced a guilty-unless-proven-innocent standard for accused students. In at least one case, that of Caleb Warner at the University of North Dakota, the standard (before FIRE's involvement) amounted to guilty even when proved innocent by the local police.
The real-world effects of that standard were revealed in a horrifically framed New York Times article today on former Yale quarterback Patrick Witt.
In what sports media columnist Richard Deitsch accurately described as a "bombshell," the article, penned by Richard Pérez-Peña, revealed that earlier this fall, a fellow student accused Witt, a Rhodes Scholar finalist, of a sexual assault. The accuser did not file a complaint with the New Haven police. Nor at least on the basis of the material presented by the Times, did she go to the hospital for a rape exam. But she did turn to the new, post-"Dear Colleague" Yale judicial process. In that process, the accuser didn't even appear to have filed a formal complaint against Witt.
Somehow, however, the Rhodes Trust found out about his "informal" complaint, and demanded that Yale re-endorse Witt before moving forward with his candidacy. In response, Witt withdrew his Rhodes application, though he did so in a way that implied that the withdrawal was caused by a scheduling conflict between his Rhodes interview and the Harvard-Yale game. The article also leaves the impression that Witt has withdrawn from Yale.
In what could only be deemed a wildly misleading framing, here's how Pérez-Peña described the effects of the "Dear Colleague" letter: "The accusation against Witt, a history major who has expressed interest in a career in politics, came as Yale's handling of sexual harassment and assault is under intense scrutiny, including an investigation by the United States Department of Education. Last year, Yale overhauled its systems for handling such complaints and imposed a five-year ban on campus activities by a fraternity, Delta Kappa Epsilon, whose members and pledges had engaged in highly publicized episodes of sexual harassment."
Yale "overhauled its systems for handling such complaints," because it was "under intense scrutiny." No mention of the lowered burden of proof in a system already tilted toward the accuser. No mention of the civil liberties impact of this new system. No mention, indeed, of anything that the "Dear Colleague" letter demanded. A typical Times reader would come away from the article with a false belief that the system changed from a structure that favored potential rapists to one that's fair and balanced.
But, of course, this is the New York Times. And if the Duke lacrosse case left no other legacy, it's that the paper frames its coverage of campus allegations of sexual assault in such a way that ignores issues of due process.
I don't know if Witt is innocent or guilty. But I do know that, at least at this stage, he's entitled to the something beyond a presumption of innocence, since his accuser did not file a report with police, receive a medical exam, or even file a formal campus complaint (in which he would have had some, albeit minor, due process protections). In the upside-down post-"Dear Colleague" era, however, Witt becomes the highest-profile case of a student who chose to withdraw from school rather than face a kangaroo system of "justice." That's not an angle the Times has deemed even worthy of a mention.
KC Johnson is a Professor of History at Brooklyn College and the CUNY Graduate Center, and author of the blog Durham-in-Wonderland. He is co-author, with Stuart Taylor Jr., of "Until Proven Innocent."