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A judge or jury can’t convict someone of rape without evidence beyond a reasonable doubt. But a college court can.
And enough is enough, says a growing number of outraged academics, attorneys, civil rights scholars, journalists and others.
It all stems from a federal mandate issued by the Obama administration two years ago. On April 4, 2011, the Education Department issued a directive on campus sexual assault that states, “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”
And by “sex discrimination,” they also mean rape. The direction on grievance procedures is listed under a heading titled: “What are a school’s obligations under Title IX regarding sexual violence?”
College campus courts using the preponderance of evidence standard of evidence to weigh sexual assault cases has many onlookers outraged.
The group Stop Abusive and Violent Environments, or SAVE, believes the department policy is unconstitutional. SAVE issued a statement declaring the preponderance of evidence standard is “stripping the accused of the presumption of innocence and allowing students to be expelled without the benefit of legal counsel.”
SAVE has published a list of 13 organizations that have issued letters calling on the department to rescind its sexual assault directive, including the American Association of University Professors, the American Council for Trustees and Alumni, the National Association for Scholars, Tully Center for Free Speech at Syracuse University, eight civil rights scholars, Accuracy in Media, the Heartland Institute, the Alliance Defense Fund and Feminists for Free Expression.
SAVE has also published a list of 110 editorials criticizing the department policy, including those written by Michael Barone, Mona Charen, Phyllis Schlafly and Heather MacDonald.
The New York Times sponsored a debate on the directive last month and published a column by Adam Goldstein, attorney advocate for the Student Press Law Center, which called for an end to major felonies “investigated and adjudicated by amateurs, in secret, without subpoena powers, a right to representation or any kind of due process controls.”
SAVE says “students found guilty under the policy are typically expelled and may find it difficult to gain admission at another college.”
A year ago, WND reported a case of severe injustice caused by the department’s preponderance of evidence policy.
Student Caleb Warner was found guilty of sexual assault by a campus court at the University of North Dakota in Grand Forks in 2010 despite the facts established at the time by city police. Officers not only refused to charge him, but also alleged his accuser made a false report. Police issued a warrant for her arrest.
It took 18 months – during which Warner not only was banned from the UND campus, but also from all college campuses in the state – for the university to agree to reconsider the conviction and clear his record.
The Foundation For Individual Rights in Education, or FIRE, said, “Nobody should be surprised that [Warner] does not want to return to UND.”
“The university showed less than zero concern for disrupting his life and career and branding him a criminal based on an extremely low standard of evidence, and has shown zero inclination to be remorseful about what it has done,” the group said.
The Warner case also illustrates the extreme legal danger a student can face in a college court.
Everett Bartlett, president of SAVE, told WND, “One thing many people don’t know about Caleb Warner, is that when he was called before this (campus court) panel, he was not allowed to have a lawyer to assist him in that hearing. Nonetheless, everything he said in that hearing, every word, could have been used against him in a court of law, if there had been a criminal charge filed against him.
“So, this just one example of how the deck is stacked against the accused in these cases,” Bartlett added.
FIRE issued a letter signed by more than a dozen civil rights organizations to the Obama administration that pleaded with officials to address and correct the department policy.
FIRE’s letter to the Department of Education’s Office for Civil Rights asked administration officials to address the threats to student rights posed by its “Dear Colleague” letter in 2011.
In the 19-page letter sent in 2011 to schools and colleges nationwide, Russlynn Ali, assistant secretary for civil rights, said, “[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred).”
The letter went on to describe how a “higher standard” of proof, such as “clear and convincing,” are not “equitable under Title IX.”
Thus, without much fanfare or public debate, the interpretation of Title IX by the Department of Education’s Office of Civil Rights was set as the “approved” way of conducting justice in America’s schools and colleges.
FIRE wrote to the Obama administration at the time, raising objections because of the potential for abuse of students’ rights.
FIRE wrote again months later, joined by others in a letter to Ali that explained her document failed to “provide a clear, controlling and constitutional definition of discriminatory harassment in the educational context.”
“This omission is glaring. The DCL’s silence on this crucial aspect of an institution’s dual obligations under Title IX and the First Amendment confuses an issue that previously had some clarity and perpetuates the persistence of unconstitutional restrictions on student speech in the guise of overbroad or vague harassment policies,” the FIRE letter said.
“To provide much-needed definitional clarity, while simultaneously recognizing an institution’s twin obligations to protect free speech and prevent harassment, we once again urge OCR to make clear that institutions satisfy Title IX by adopting no more and no less than the definition of prohibited harassment in the educational context set forth by the Supreme Court of the United States,” FIRE wrote.
The letter also noted that under the Obama administration requirements, the accuser also must be provided a channel for appeal. That means one person facing an accusation – and cleared by a judicial process – could still have to defend himself or herself a second time.
“For a student, the consequences of being found guilty of sexual harassment or sexual assault are devastating,” the letter argued. “With so much at stake, it is simply unfair to force a student to defend himself or herself multiple times against the same accusation of sexual misconduct.”
The letter also points out the requirement for the “judiciary’s lowest standard of proof.”
The requirement conflicts with U.S. Supreme Court precedent that has concluded when a person’s good name, reputation, honor or integrity are challenged, due process requires “precautions against unfair or mistaken findings.”
The letter said, “It is unconscionable to require that those accused of such serious violations be found merely ‘more likely than not’ to have committed the offense in question.”
Signers included Joseph Cohn of FIRE; Cynthia Bowman of Cornell; Kevin Clermont of Cornell; David Cortman of the Alliance Defense Fund; Suzanne Delaney of Feminists for Free Expression; Christopher Finan of American Booksellers Foundation for Free Expression; Roy Gutterman of the S.I. Newhouse School of Public Communications; David Horowitz of the David Horowitz Freedom Center; KC Johnson of Brooklyn College; Malcolm Kline of Accuracy in Academia; Eli Lehrer of the Heartland Institute; John Leon of the Center for the American University at Manhattan Institute; Michael McConnell of Stanford; Anne Neal of the American Council for Trustees and Alumni; Cary Nelson of American Association of University Professors; Glenn Ricketts of National Association of Scholars; Jane Shaw of John William Pope Center; Christina Sommers of American Enterprise Institute; Nadine Strossen of New York Law School; and Sue Udry of Defending Dissent Foundation.
FIRE President Greg Lukianoff said the Office for Civil Rights of the Department of Education “needs to understand that ignoring the threats to due process and free speech on campus it created with its April 4, 2011, letter will not make those threats disappear.”
“We hope that OCR finally decides to answer the concerns voiced by this broad coalition of groups and individuals that spans the political and ideological spectrum,” he said.