Wednesday, May 2, 2012

It is a moral imperative that colleges (1) support the accuser who was likely sexually assaulted, and (2) protect the presumptively innocent unless it is clear he is guilty: Princeton proves it is possible to do both

Late last year, Princeton quietly revised its sexual misconduct policy in a laudatory manner that serves the interests of both the accused and the accuser. It should be the model for all schools.

Most institutions of higher education have interpreted the the Department of Education's April 4, 2011 "Dear Colleague" letter as mandating that their schools apply the lowest standard of proof, preponderance of the evidence, for all sexual misconduct hearings. This means that a student likely will be expelled, or suspended for a lengthy period of time, if a disciplinary hearing board determines that it is more likely than not (50.1%) that he committed the offense.

Princeton doesn't read it that way. It has established separate, parallel procedures for (1) student discipline, and (2) Title IX grievances. Disciplinary proceedings, which involve investigations and adjudications of alleged student violations of University rules, require “clear and persuasive" evidence to find a violation. But Title IX grievances, which involve complaints against the University alleging that Princeton has failed to meet its obligations under federal law, require a lesser standard, a preponderance of the evidence.

What this means is that Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering a duty to provide support for the accuser.

Princeton's Provost Christopher Eisgruber described the University’s procedures as “fully compliant with Title IX,” noting that the OCR letter explains that colleges and universities “have options about how to address Title IX grievances related to sexual misconduct.” Provost Eisgruber said the policy is the best way to balance protecting both the Title IX and due process rights of students. "There are in these kinds of proceedings two different kinds of mistakes that can be made. You have to protect against both of them."

Provost Eisgruber is correct. First, protecting the accused is vital to all civilized notions of fairness. Employing a stringent standard of proof to adjudicate guilt is critical to the fair treatment of the presumptively innocent. It is universally accepted that the "beyond a reasonable doubt" and "clear and convincing evidence" standards reduce the risk of punishing the presumptively innocent based on factual error. Sexual misconduct cases often come down to a battle of "he said/she said" evidence. The absence of overriding evidence to establish guilt or innocence is neither a valid nor a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite: it is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.

By the same token, since it is often impossible to be reasonably certain about what happened in these cases, it is a moral imperative to also support the accuser if it's likely true that she was assaulted. If the school finds by a preponderance of the evidence that the accuser's Title IX rights have been violated by the school, she should be treated as a victim. Such an adjudication might require the separation of the accuser and the accused as well as other protections for the accuser that may impose certain restrictions on the accused. But it would not include besmirching forever his reputation, and impeding his education and employment opportunities, by expelling him.

Wendy Murphy, for one, takes issues with the University’s approach. “Preponderance of evidence is a nonnegotiable standard of proof for all harassment based on sex — including sexual assault — irrespective of whether the harm is framed as a ‘disciplinary’ matter or a ‘Title IX’ matter,” Murphy said. She says that schools "have to stop saying, ‘We believe her, but not enough that we’ll punish him.’”

The fact is, in many cases, the school doesn't know who to believe. Murphy's all-or-nothing approach forces the school to make a terrible, and unnecessary, choice, often based on murky evidence: (1) severely harm the accused by expelling him, or (2) clear the accuser and do nothing to support the accuser. On gray evidence, most fair-minded people would have to choose the latter course, which often is not a good solution. Princeton's approach recognizes the reality of these cases and protects both the accuser and the accused as much as possible. For reasons that are unfathomable, it is more important to Wendy Murphy to punish men than to help women.

Most troubling in the ongoing debate are assertions that trivialize the rights of the accused. Murphy was recently quoted in a news article: "Colleges must protect victims, she says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they’d enjoy in a criminal trial. 'You can’t run a school that way,' Murphy said. 'If every once in a while a school has to be sued at the cost of being fair to all students, so be it.'”

Brett Sokolow, founder of the National Center for Higher Education Risk Management, which helps colleges across America mold their sexual assault policies to enhance the rights of alleged victims, recently commented on a news story by stating flatly: "Campuses are not administering justice.  Why would you think we are? We're protecting our communities from those who may be dangers to it. How can we do anything less?"

We would like to see one of the schools that utilize Mr. Sokolow's services put that in a recruiting brochure -- "if you are accused by a fellow student of an offense, don't expect justice from us."  Private colleges generally adhere to an established protocol of fairness, which often is contractually binding on it. Moreover, to suggest that a public college has no duty to apply due process in disciplinary proceedings (and how else can one reasonably read Sokolow's pronouncement?), or that a school can truly protect its communities by not doing justice, are assertions as frightening as they are wrong.

Wendy Murphy doesn't think the Department of Education's OCR will tolerate Princeton's approach. But the AP recently reported that Russlynn Ali, the head of OCR, "indicated she wasn't necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them 'case by case' — suggesting colleges may have more flexibility than they realize."