Task Force Comment
March 4, 2014
The “White House Task Force To Protect Students from Sexual Assault,” an initiative that thus far has elected not to engage civil liberties groups, invited public comment on its work and the issue of the administration’s response to campus sexual assault allegations. Below is the comment that I submitted:
Since the Task Force has invited public comment, I write to express my concerns with the administration’s lamentable, consistent, efforts to weaken due process protections on campus. (For the record: I write as an Obama supporter in both 2008 and 2012.) The anti-due process crusade began in 2011, when the Office for Civil Rights (OCR) issued a “Dear Colleague” letter holding, nearly four decades after its enactment, that Title IX required colleges to substantially weaken the already weak due process protections for students accused of sexual assault on campus. Now, through the rule-making effort for an update to the Violence Against Women Act, the administration is attempting to make permanent this unfortunate change.
Although a number of civil liberties groups, most prominently the Foundation for Individual Rights in Education (FIRE), challenged the provisions of the “Dear Colleague” letter from the start, the OCR has proven frustratingly unwilling to publicly explain why Title IX requires colleges to use a preponderance-of-evidence standard in sexual assault cases or to allow accusers to appeal not-guilty disciplinary finding. Nor has the OCR even remotely defended its proposition that Title IX justifies the agency’s strong suggestion that colleges forbid accused students from cross-examining their accusers, despite the obvious threat to due process caused by such a policy.
Based on statements and policies adopted by defenders of OCR, however, there appear to be two purported justifications for the OCR’s action. The first is procedural: that civil actions represent the most appropriate analogy for campus sexual assault hearings, and therefore the civil standard of preponderance-of-evidence is
This line of argument misunderstands the basics of most college disciplinary processes. As a statement from FIRE recently explained, “those facing civil penalties in real courts under the preponderance standard are afforded many fundamental protections that are typically absent from campus tribunals, including impartial judges, unbiased juries of one’s peers, representation by counsel, mandatory ‘discovery’ processes to ensure that all parties have access to relevant information, restrictions on unreliable evidence like hearsay or prior bad acts, and sworn testimony under penalty of perjury.” Tellingly, while the OCR has championed the preponderance-of-evidence threshold for students accused of sexual assault, the agency has declined to demand that universities guarantee any of the above procedures for accused students.
The civil-suit comparison also misunderstands the current effects of expulsion. Thirty or forty years ago, in an era in which many people still blamed the victim for sexual assault, college rapists could and often did flourish later in life. (Recall the experience of David Wu, whose college girlfriend accused him of attempted sexual assault in 1976, and who was disciplined by Stanford, but who nonetheless went on to be elected to Congress from Oregon.) But in the current environment, the effect of a guilty finding extends well beyond simply needing to find another school. Few colleges, for entirely understandable reasons, will accept as transfer students an undergraduate who has been deemed a rapist by his previous institution. Even those accused students who manage to graduate college will find jobs that require background checks (a common phenomenon in our security-conscious times) foreclosed to them in the future.
For actual rapists, of course, this fate is a highly insufficient punishment, since even if they’re expelled from school and lose future employment opportunities, they won’t go to jail. But for the falsely accused (and convicted), an incorrect disciplinary judgment will have a shattering, lifelong effect. That fate applies even to those convicted for offenses that campuses describe as sexual assault but that few people off campus would recognize as such. At Occidental, for instance, affirmative consent can sometimes not be a defense against a rape charge, since the college holds that in sexual intercourse, “‘Yes’ may not always mean, ‘Yes.'” Or take Yale, whose definition of intimate partner violence includes “economic abuse” between roommates. Yet on their transcripts, students convicted under such standards would nonetheless be branded as rapists.
If weakening due process made it more likely that college disciplinary tribunals would reach the truth, perhaps the change would make sense. But the OCR has presented no evidence that such an outcome is related to adjudicating cases by a preponderance-of-evidence standard.
The OCR’s second rationale appears to revolve around an unusual definition of safety–a hunch that actual victims will be more likely to report allegations of sexual assault to campus authorities if they believe it more likely that the proceeding will end in a guilty finding. While it’s conventional wisdom that victims will be more likely to report sexual assault cases if they are treated with respect by authorities and if they are confident that authorities will properly investigate their claims, I’m not aware of any study that suggests victims calculate the odds of success at trial before reporting a crime. And even if such a study existed, lowering the burden of proof to encourage more reporting of what remains a criminal offense is repugnant to American traditions.
In the event, it’s hard to credit the OCR with an ostensible commitment to safety, given the agency’s recent settlement with SUNY. Common sense would indicate that the best way to reduce sexual assault on campuses is to tighten working relationships between local law enforcement and the campus community. Such an approach wouldprovide positive assurance to victims (that their accusation will be considered seriously) without in any way undermining due process. Hopefully, more victims of crime on campus would feel comfortable enough to file police reports–ensuring that trained law enforcement officers, as opposed to untrained academic administrators, actually investigate sexual assault cases. Since campus disciplinary panels lack subpoena power, can’t override HIPAA restrictions to analyze the medical evidence that’s often critical to sexual assault cases, and do not generally employ trained law enforcement officers, they are almost singularly ill-equipped to conduct investigations of what remains a criminal offense.
Yet, if anything, OCR has moved in the opposite direction. A recent consent agreement between OCR and SUNY contained an extraordinary provision requiring colleges to independently investigate sexual assault allegations–even when those allegations had been already investigated by the police, and even if the police had concluded the allegations had no merit. The implication that colleges are equally capable to investigate a sexual assault claim as are law enforcement officials cannot be reconciled with a desire for safety. Instead, it appears as if a more explicitly ideological goal–altering the system to increase the likelihood of accused students being labeled rapists, out of a belief that too many actual rapists aren’t found culpable for their crimes–motivates the OCR’s initiative.
Linking the university more tightly with flawed investigations into criminal matters serves the interests of no one–not the accuser, not the accused, and not the university itself. As the Hoover Institute’s Peter Berkowitz recently observed, “For the sake of genuinely liberal education, faculty and administrators must get out of the business of investigating the most serious forms of sexual misconduct, particularly sexual assault. Professors and university officials must be educated to recognize their woeful lack of the expertise necessary to properly gather and analyze evidence, establish guilt, and ensure fairness for the accuser and the accused. And they should be taught to promptly advise all students who believe they have been sexually assaulted to report their allegations to the police.”
One final point. The OCR’s new standards almost certainly mean that more innocent students will be deemed rapists by their schools. To take an extreme example: given the ideological climate at Duke in 2006, I have no doubt that if the false accuser in that case, Crystal Mangum, had filed a claim through the campus disciplinary process (for reasons that remain unclear, she didn’t do so), the three falsely accused students would have been found culpable under the OCR’s disciplinary mandate.
But the problem with the preponderance-of-evidence mandate goes well beyond the fear that more and more colleges will brand demonstrably innocent students as rapists. (Since most credible studies, using very restrictive criteria, suggest that between 8 and 10 percent of sexual assault claims are false, most accused students are not demonstrably innocent.) That said, surely an additional percentage of campus sexual assault claims are probably false. In a disciplinary process governed by the clear-and-convincing threshold, such cases have a good chance of yielding a not-guilty finding, despite the myriad due process failures of most college disciplinary panels. But the preponderance-of-evidence standard, combined with accused students’ inability to have counsel, to discover potentially exculpatory evidence, and to vigorously cross-examine all relevant witnesses, provides virtually no safeguards for students accused of sexual assault who cannot unequivocally prove their innocence.