Below is my column this morning in USA Today on a campaign by the Obama Administration to pressure colleges and universities to reduce due process protections for students accused of sexual harassment and sexual violence. I have previously written a letter to my own university opposing some of these specific changes, though (like many schools) George Washington appears to be yielding to the pressure. I understand the concern of the Administration and the need to protect victims in this difficult process. We are all committed to maintaining a protective environment for both students and faculty. However, there are other ways to offer such protections without stripping away core due process protections in my view. My greatest concern is with the sexual violence cases because these adjudications will have a lifelong impact on the students (or faculty members) as well as consequences for collateral criminal proceedings. The column below is slightly expanded with material cut for space in the newspaper version.
Six years ago, prosecutors finally dropped rape charges against former Duke University lacrosse players accused of attacking a stripper. Perhaps the greatest offense against the players was not the false accusation by Crystal Mangum, but the assumption by Duke that the students and anyone associated with them were guilty. In the wake of this scandal, many schools learned a hard lesson from Duke’s bad publicity and sought to protect students and faculty from a future rush to judgment. However, school efforts to reinforce due process protections have run into opposition from an unexpected source: the Obama administration.
Last year, universities received a seemingly friendly “Dear Colleague” letter from the administration demanding that schools actually reduce due process protections in disciplinary hearings for accused students and faculty in sexual misconduct cases. If they did not, the letter warned, they could lose federal funding and face discrimination charges discrimination. The helpful “colleague” on the other side of the letter was Russlynn Ali, then assistant secretary for civil rights at the Department of Education. She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.”
Ali just resigned, providing an opening for the Obama administration to reconsider. That’s overdue because the interpretation of due process as a form of discrimination has shaken the academic community, which is deeply divided on whether to yield to the overt threats. It is a Faustian bargain for academics: Either strip students and faculty of basic due process protections or be declared discriminatory.
In the past, many schools have required significant evidence to find students or faculty guilty, often a “clear preponderance” or “clear and convincing evidence.” These standards require less than the criminal “beyond the reasonable doubt” standard but still a 75% or 80% certainty of guilt. The administration, however, demands that schools adopt the lowest evidentiary standard short of a presumption of guilt — “preponderance of the evidence,” just slightly above a 50-50 determination.
Because many of these cases involve the classic “he-said-she-said” situation, they come to the university as an even split based on opposing testimony. Add in the fact that many of these cases involve drinking, and the “preponderance” standard becomes a recipe for injustice. Even the slightest evidence can dictate the result and tends to favor conviction.
While this low standard is used in some civil cases, the accused is generally afforded other protections that the Obama administration directive strips from the accused. For instance, the directive discourages schools from allowing a student or faculty member to question the accuser. And schools have seized on that. Last month, a Georgia college student was expelled after rape allegations without the opportunity to confront the accuser or even, the student alleges, know the names of other witnesses in the case. After a judge halted the expulsion, the parties reached an “undisclosed resolution.”
The Supreme Court has insisted in criminal cases that the right to confront the accuser must be honored even when a court believes that the victim’s testimony is highly credible. The court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.” Yet, the administration insists that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.”
Adding to the unfairness is the fact that many schools like George Washington, where I teach, do not even allow for legal representation of students in these proceedings. Likewise, most do not account for potential criminal prosecutions. University investigations can undermine the rights of criminal defendants by forcing them into a process without other constitutional protections that the accused have in criminal court, such as the right to remain silent. Thus, evidence that would be viewed as improper, if produced by prosecutors in criminal court, can be admitted if generated first by a university.
Like other schools, George Washington does not even define the offense of “sexual violence.” Thus, a student can be convicted of an undefined offense under the lowest standard of proof without either confrontation or active counsel. Worse yet, the lesser offense of “sexual harassment” is defined as including the undefined “sexual violence” — adding a mind-numbing circularity.
Equally disturbing is the common rationale cited by those demanding these changes: money. As recently stated in an article by the respected Chronicle of Higher Education, the lowering of the burden of proof “[f]irst . . . protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money.” This common rationale puts money squarely before the merits in the priority for discussion.
The Obama administration has created the perfect Potemkin village — a legal façade with the outward appearance of a due process without its substance. Weighting the system to guarantee more convictions is not combating sexual violence or harassment. It is achieving a statistical success rather than the harder process of assuring justice for both alleged victims and the accused. Students are not statistics and deserve more than the equivalent of a coin toss with two lives in the balance.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Published December 6, 2012