In this week's Chronicle of Higher Education, Joseph Cohn, director of policy at FIRE, summarizes the due process implications of a letter sent to colleges and universities last April by the Department of Education's Office for Civil Rights. As was widely reported at the time, the letter instructs schools to adopt the lowest standard of proof in our judicial system, preponderance of the evidence, in cases of alleged sexual misconduct, ranging from harassment to rape.
During the Bush Administration, Cohn notes, colleges enjoyed greater flexibility in their proceedings, and the Office of Civil Rights accepted a wide variety of standards among institutions. The new directive, signed by Obama appointee Russlyn Ali, allows little latitude.
Supporters have defended the lower standard of proof by citing civil lawsuits that also rely on a preponderance outcome, but the elements of civil lawsuits that are missing from campus hearings are worth listing:
- Civil trials have impartial, legally-trained judges; campus hearings often rely on "a panel of faculty, students, and/or administrators."
- In civil cases, either party may demand a jury; in campus hearings, the option isn't available.
- In civil cases, parties have right to counsel; in campus hearings, "parties to these hearings frequently have no right to counsel."
- In campus hearings, "rules of evidence don't apply," and witnesses "are usually not placed under oath."
According to Cohn, of 198 colleges ranked by U.S. News & World Report, 30 institutions so far have complied.
This is a travesty of due process, but it pleases advocacy groups such as the Women's Sports Foundation, the Association of Title IX Administrators, and Wendy Murphy (remember the Duke Lacrosse Scandal?), all of whom signed a statement in support of the letter. One particular sentence in the support statement indicates clearly why the new standard is a dangerous one. It reads: "The preponderance standard is the only equitable choice under Title IX as it avoids the presumption, inherent in a higher standard of proof, that the word of a victim is less weighty than the word of an accused individual's denial."
Note the acceptance of victim status for one party before the respective "words" have even been given. In some cases, of course, there will be physical evidence of assault, but in other cases, we have precisely a contest of words alone. With the stakes so high for the accused, should the accuser's accusation be as "weighty" as the accused's denial? Yes, according to these groups and the Obama Administration, and they dress it up in a language of "equity."