Tuesday, April 12, 2011

The Most Important Issue This Blog Has Ever Reported

Under the Obama administration's new directive, a male accused of sexual assault may be expelled from college, and his freedom to go on to graduate school and obtain decent employment may be curtailed and even destroyed, even if there is only a very slight probability that he committed the assault.

That's not hyperbole.

There are generally three levels of standard of proof in adjudicative proceedings: "beyond a reasonable doubt" (applied in criminal cases); "clear and convincing evidence" (meaning that there is a high probability that the facts asserted are true); and "preponderance of the evidence" (the standard used in civil actions for money damages).  Most college grievance procedures utilize either the "clear and convincing" standard or the "preponderance of the evidence" standard. Now, all must use the preponderance of the evidence standard.

The U.S. Education Department's Office for Civil Rights has issued a letter dated April 4, 2011 to colleges setting forth unequivocal guidelines for handling claims of sexual harassment, including claims of sexual assault. In order to be in compliance with Title IX, for all sexual harassment claims (which include claims of sexual assault) that are brought before college grievance boards, the OCR makes clear that "the school must use a preponderance of the evidence standard," as opposed to the "clear and convincing evidence" standard currently used by many schools.

The Education Department's directive that colleges impose a preponderance of the evidence standard in sexual assault grievance hearings has been called "legislating through administrative fiat, in a way that is arbitrary and capricious."  See here

It is also likely the single most important issue this blog has ever reported on.

Hans Bader posits a well-reasoned argument why the Education Department is wrong: "The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students."  Read the entire piece here.

What does this mean in the real world? If the grievance hearing board finds that the complainant's story of the alleged incident is more credible than the accused's, even by a 50.0001 to 49.9999 percent margin, he packs his bags and is banned from the school forever. Forget law school, forget medical school. And good luck explaining that to prospective employers. His life has been effectively destroyed.  And in making this determination, the school can have all the reasonable doubt in the world. The school need not even believe that there's a high probability (the "clear and convincing" standard) that he did it.

The OCR's directive was premised on sloppy research (that one in five college women are victims of sexual assault or attempted sexual assault) because the survey respondents were self-selecting. That, of course, renders the findings completely meaningless.  This is not even to mention that the the one-in-five standard is outrageously inconsistent with even a 90 percent under-reporting standard, see here, and that if that figure were accurate, our college campuses would be more dangerous places than even the Tadmor Prison in Syria, where the bloodthirsty guards butcher inmates with axes for the fun of it.  Heather MacDonald calls the stats "bogus."

Schools are already lowering their standards of proof in response to the OCR's directive. Stanford has just done it. Associated Students of Stanford University President Angelina Cardona applauded the move, noting: “Lowering of the standard of proof is absolutely crucial to the women’s community." Brandeis, too, will shift its standard of proof for internal hearings on sexual assault to a lesser burden, a university official said, pursuant to the OCR directive. Harvard Law School and U.Va. are feeling the heat as well: both are already "under investigation because they require sexual assault victims to prove their allegations by 'clear and convincing evidence' (about 80 percent proof) rather than the less rigorous, 'preponderance of evidence' standard (about 51 percent proof)."

While it is a terrible thing for a young woman to see her rapist escape without punishment, it is an even more terrible thing to hold a young man responsible for a rape he didn't commit. The chances of making a mistake, and of doing exactly that -- holding a young man responsible for a rape he didn't commit -- have just skyrocketed with the Education Department's latest directive.

It is not hyperbole: under this new directive, an accuser and a school are free to destroy the life of a young man even if there is only a very slight probability that he did anything wrong.