Colleges' Push New Sex Assault Guidelines

The Chronicle reports:

American courts take exacting precautions to avoid convicting an innocent person of a crime. It was therefore startling to read the April 4, 2011, directive on sexual violence sent by the U.S. Department of Education's assistant secretary for civil rights, Russlynn H. Ali, to college officials across the country. In an effort to make campuses safe and equitable for women, Ali, with the full support of her department, advocates procedures that are unjust to men.

She begins by describing the "deeply troubling" state of the American campus, where "one in five women are victims of completed or attempted sexual assault." The Title IX equity statute, she says, guarantees students a right to an education free of discrimination on the basis of sex. Sexual assault and harassment violate this right; therefore, colleges that fail to pursue offenders aggressively can be found in violation of Title IX and lose federal government funds. No matter what the local police choose to do, says Ali, colleges are obligated to carry out their own investigation of all complaints.

"We will use all of the tools at our disposal including ... withholding federal funds ... to ensure that women are free from sexual violence," Ali told NPR last year. One such tool is the standard of proof that college disciplinary committees use when determining guilt. Many colleges employ a "beyond a reasonable doubt" or a "clear and convincing" standard. (Roughly speaking, "beyond a reasonable doubt" requires a 98-percent certainty of guilt; clear and convincing, an 80-percent certainty.) Ali, however, orders all colleges to adopt the far-less-demanding standard of "preponderance of the evidence." Using that standard, a defendant can be found guilty if members of a disciplinary committee believe there is slightly more than a 50/50 chance that he committed the crime. That standard will make it far easier for disciplinary committees to try, convict, and punish an accused student (almost always a male).

Marching under the banner of Title IX and freed of high standards of proof, campus disciplinary committees, once relatively weak and feckless, will be transformed into powerful instruments of gender justice. At least, that is the fantasy. But here is the reality: Campus disciplinary committees—often a casual mix of professors, students, and an assistant dean or two—are well suited to resolving cases involving purported plagiarism and cheating, and violations of college rules on drugs and alcohol. But no one considers them prepared to adjudicate murder, arson, or kidnapping cases, or criminal assault. They lack the training and the resources to investigate and adjudicate felonies. So why are they expected to determine guilt or innocence in cases of rape?

As with murder and arson, serious charges of sexual assault should be left to the police and the courts. The Department of Education should not pressure universities to enact a system whereby a student can be found guilty of a major crime by a mere preponderance of evidence.