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Adam Kissel

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Standing Up for Due Process on Campus = "Sticking Up for Penises Everywhere?"

Posted: 08/30/11 12:14 PM ET

When precisely did we decide that we want the federal government in our sex lives?

At the end of last academic year, the Campus SaVE Act was introduced in both houses of Congress. One strange mandate in it is that almost all colleges in America must teach students about "the elements of healthy relationships," like some strange, federally mandated "birds and bees" talk.

College students are adults, right? Didn't they have sex ed in middle school and high school?

The more serious issue in the Campus SaVE Act is that it demands a low "preponderance of the evidence" standard in cases where people are accused of the heinous crimes of domestic violence, dating violence, sexual assault, and stalking. This 50.01% standard is our judiciary's lowest standard of proof, and it does not sufficiently protect an accused person's right to due process. I would love to see more guilty people found guilty -- who wouldn't? But is lowering the level of certainty by which we convict people of such serious crimes really the way to do it? The advocates of this bill seem to see due process as an impediment to justice, not an essential component of justice.

Consider how many people actually are found innocent in the criminal system after years in jail and being labeled as rapists. Yet, these accused were found guilty under the extremely tough "beyond a reasonable doubt" standard (usually considered about 98-99% certainty) with all the protections and procedures that criminal defendants are given -- not to mention the tremendous resources involved, from forensic labs to professional and trained investigators.

The Innocence Project reports that "Since 1989, there have been tens of thousands of cases where prime suspects were identified and pursued -- until DNA testing (prior to conviction) proved that they were wrongly accused." And at least 273 people who were actually convicted were later exonerated by DNA evidence. Seventeen of them had been on death row for crimes they didn't commit.

On campus, since claims of sexual violence often involve alcohol or drug use and have few or no witnesses, among other complicating factors, the risk of error caused by using the lowest possible standard of proof is quite severe. How does it make sense to trust campus judiciaries with getting serious crimes right under the lowest standards, when students often are not even allowed to have attorneys or to face their accusers and cross-examine them?

We're talking about expelling people for one of the most heinous crimes and quite possibly ruining the rest of their lives. We'd better be darn sure before we do that to somebody by branding them as a rapist. At least (and there are good legal reasons for this), we should use the "clear and convincing evidence" standard (around 80% certainty), which is in between the lowest and highest standards.

But the sponsors of the Campus SaVE Act are not the only ones pushing for the lowest standard. In April, the federal Department of Education's Office for Civil Rights (OCR) sent a letter to colleges and universities nationwide mandating it in cases of sexual harassment, counting sexual assault as one form of sexual harassment. OCR claims to be allowed to do that by interpreting the federal law that bans sex discrimination at any school that takes federal money.

Most of the nation's top schools used "clear and convincing" or higher standards before the federal government forced the change -- including Stanford University, Harvard Law School, Princeton University, Columbia University, Yale University, the University of Pennsylvania, Duke University, and Cornell University.

The problem extends to professors' rights as well, and it threatens academic freedom and free speech on campus because badly written and shockingly unconstitutional "sexual harassment" policies often ban speech that is protected by the First Amendment. The American Association of University Professors (AAUP) has sent not one, but two letters to OCR defending faculty rights. One letter came from the committee that defends professors' academic freedom, and the other came from AAUP's Committee on Women in the Academic Profession and AAUP President Cary Nelson.

Some professors, as expressed by the Committee on Women, worry that "gender studies courses that directly address sex and sexuality" might lead to prosecutions by uncomfortable students. They have good reason to be worried. Two-thirds of college campuses reviewed by The Foundation for Individual Rights in Education (FIRE, where I work) have unconstitutional speech codes -- policies that clearly and substantially restrict speech. A large proportion of these are sexual harassment policies, even though most of the speech codes struck down by federal courts were sexual harassment policies with similar language.

To take just one example, California State University - Chico bans, as sexual harassment, "explicit use of ... stereotypic generalizations" and even "reinforcement of sexist stereotypes through subtle, often unintentional means." Such a code would be laughed out of court if challenged, since it's grossly unconstitutional.

FIRE has been the leading voice for due process and fair procedure in "sexual misconduct" cases. FIRE and many others have written about the problem -- Greg Lukianoff here on The Huffington Post, and others in the Philadelphia Inquirer, The Wall Street Journal (twice), New York Post, and more--men and women alike coming together against the new mandate.

A must-read article by Sandy Hingston was just published in Philadelphia magazine on "The New Rules of College Sex." Hingston writes:

[The OCR] guidelines impose a paralyzing "nanny state" on college campuses here in Philadelphia and across the country. At precisely the time in their lives when young men and women should be exploring what sexuality means, the new rules choke off their freedom, limit their choices, and encourage the canard that all males are unrepentant predators. What's more, they position women as helpless victims who require bureaucratic protection from those males--victims with no responsibility for their own behavior.
Heaven help those women when they graduate.

As Hingston reports, one of the leading figures trying to diminish due process rights is Brett Sokolow of the National Center for Higher Education Risk Management (NCHERM). He gets paid big bucks to advise colleges on how to comply with the new federal regulations. For one recent event, his organization charged $2,500 a head -- bringing in $425,000 overall. Let me repeat: that was for one event.

That's a lot of tuition money and tax dollars not being spent on education or academic research. But Sokolow doesn't seem to mind:

"I'm enjoying the position of having a Title IX training program in place even before the need for the coordinators was announced," [Sokolow] says from his couch. "Registration has taken off."

Hingston also interviewed FIRE's Samantha Harris, who said,

"We have to protect victims' rights, but how many innocent students is it right to convict to do so?" Due process, she says, doesn't just safeguard the accused; it preserves the integrity of the judicial system. "If I were sending a son off to college now," she adds, "I'd be very concerned."

When Hingston asked Sokolow about FIRE's arguments, he said:

"FIRE is sticking up for penises everywhere."

For the record, we are sticking up for all body parts that might be involved in a campus accusation of sexual misconduct.

This is a serious business -- addressing sexual assault on campus without sacrificing fundamental civil rights. Yet, according to Hingston:

"The number of expelled students is going to go way up," Sokolow predicts--a prospect he's looking forward to.

NCHERM's "zero tolerance" model policy, Hingston reports, is like the discredited one at now-defunct Antioch College: "Jack has to get Diane's consent every time he wants to move up another base." Such a policy turns virtually all sexually active students into unwitting rapists and then leaves it up to the good graces of campus administrators to pick and choose who to label as a rapist.

Trust in the judicial system depends on due process. That includes basic respect for the rights of those who are accused -- the presumption of innocence, for instance, which most colleges do not even explicitly provide to the accused. Yet, Sokolow, OCR, and the proponents of the Campus SaVE Act seem to think that due process is what impedes the pursuit of justice in a free society.

Teaching students that due process stands in the way of justice sets a frightening precedent for us all. Lower standards of evidence will likely produce more guilty findings -- not just of the guilty, but also the innocent. When verdicts are wrong, the cause of justice on campus is ill-served.

 

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