Men of Brown University: Your School Uses an Illegal Standard of Proof in Sex Cases — It’s too Low, Even by Dept. of Education Standards

October 12, 2011

Earlier this year, the U.S. Department of Education’s Office for Civil Rights (OCR) mandated the lowest standard of proof, “preponderance of the evidence” (or a 50.01% standard), in sex cases. This mandate has been widely condemned because it required many schools to lower the standard of proof they had employed in sex cases from “clear and convincing” evidence to the “preponderance of the evidence” standard, thus making it much easier to find innocent men guilty of alleged misconduct they didn’t commit.

Brown University uses a standard of proof that’s even lower than “preponderance of the evidence” for sex cases. Brown’s sexual harassment policy states: “If after reviewing the investigative report, the appropriate University official (as described below) concludes that there is a reasonable basis for believing that an alleged violation of the policy has occurred, and if a negotiated settlement of the grievance has not been achieved, formal sanctions will be imposed.”

A “reasonable basis” is something lower than even a “preponderance of the evidence.” As FIRE explained, this standard allows a finding of guilt “even if the majority of the evidence is on the other side.”

While the “preponderance of the evidence” standard unjustly risks punishing innocent men for offenses they did not commit, Brown’s standard poses an even greater greater threat to innocent men and represents a truly intolerable intrusion on the due process rights of the presumptively innocent.

That aside, if the Department of Education’s mandate is the law (and it appears that the vast majority of institutions of higher learning are treating it as a binding legal directive and are adopting policies consistent with it), then it is difficult to understand how Brown’s policy is lawful. The Department of Education’s April 4 “Dear Colleague” directive leaves no room for a school to deviate from the “preponderance of the evidence” standard. It states in clear and unequivocal terms: “Thus, in 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).”

Will the Department of Education take action against Brown? Will the fair-minded students at Brown demand that the standard of proof be raised — not to shield rapists from the punishments they deserve, but to protect the innocent from punishments they don’t deserve?

Brown’s policy is in the news because of the lawsuit by William McCormick III and his parents. The McCormicks sued Brown as well as the student who said William McCormick raped her and the accuser’s father, claiming that the university falsely accused McCormick of sexual assault and that the accuser and her father libeled William McCormick and caused him to be expelled from the college. The McCormicks claim that the accuser’s father is “an alumnus of Brown and has raised very substantial sums of money for Brown.” This week, the judge in the case ordered Brown to produce fundraising documents relating to the accuser’s father. While the evidence is indisputably relevant, or would produce evidence that could reasonably lead to relevant evidence, the information might be very embarrassing for Brown.

This isn’t Brown’s first brush with a controversial rape case. Do you remember the Adam Lack case? As Kathleen Parker wrote: “Despite any substantiating evidence, a disciplinary council at Brown University, where [Lack and his accuser, Sara Klein] were enrolled, found Lack guilty of sexual misconduct and suspended him for one semester.”

Libertarian media gadfly John Stossel was sent to Brown University to cover the Lack case for 20/20. Stossel was surprised to discover that debate on the issue was not welcomed. At a rally against Mr. Lack, Mr. Stossel sought to question to protest leaders about their definition of “rape.” Stossel described the scene in words that are a stinging indictment on the intoleance of activists who have politicized rape: “I’ve covered race riots in Portland, a birth-control riot in Mexico City, yet these privileged students at an Ivy League university were louder, and more intense.” They shouted Stossel down, began chanting at him, and made it clear that there was only one side to the issue. In their world, Stossel explained, “any challenge to their thinking must automatically be hate-filled and sexist (or racist, classist, or homophobic).” J. Stossel, How I Exposed Hucksters, Cheats, and Scam Artists and Became the Scourge of the Liberal Media at 275-77.

Several years before that at Brown, a ”rape list” was famously scrawled on the wall of a library women’s room — it identified 30 ”men who have sexually assaulted me or a woman I know.” As soon as janitors scrubbed the wall clean, someone would rewrite the ”rape list” on it again. Women’s groups defended the list and reacted angrily when the school’s administration said it would no more tolerate anti-male graffiti than it allows misogynistic, homophobic or racist graffiti.