08/29/2016 01:14 pm ET Updated Aug 30, 2017

Misusing Data On Campus Rape

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Students across the country have just started the fall semester, and undoubtedly some parents are worried. Perhaps they heard of the Department of Education's 2011 Dear Colleague Letter, which called the statistics on sexual violence, "deeply troubling and a call to action for the nation." Or maybe they read Vice President Joe Biden's recent letter stating that 1 in 5 women are sexually assaulted on college campuses. If those numbers were true then we would have a crisis of terrifying proportions. As it turns out, that epidemic is false.

A 2014 Department of Justice study found just 6.1 per 1000 (.61%) women in post-secondary institutions were the victims of rape or sexual assault between 1995-2013. While any sexual assault is to be abhorred, these findings do not support claims of rampant sexual abuse. A few weeks ago, ninety law professors issued a white paper in support of the Dear Colleague Letter. Neither the Department of Education, nor Vice President Biden, nor the authors of the White Paper bothered to mention the Department of Justice figures. Instead they point to a 2007 National Institute of Justice study that looked at just two large public universities. The lead researchers were so troubled by the misuse of their findings that they "felt the need to set the record straight" and published a piece in Time Magazine stating "(t)he 1-in-5 statistic is not a nationally representative estimate of the prevalence of sexual assault..." Another oft-cited study is the 2015 Association of American Universities Campus Climate Survey, which found 1 in 4 women surveyed from 27 Institutes of Higher Education had been raped or sexually assaulted while in college. Once again, the authors explicitly wrote that the results were not nationally representative and stating otherwise, "is at least oversimplistic, if not misleading." The authors also acknowledged that because they had such a low response rate their results were likely biased and thus their estimates of sexual assault too high.

These misleading claims had a purpose. The Department of Education used them to justify lowering the bar for finding a student "guilty" of sexual assault. The Dear Colleague Letter ordered universities to lower the standard of proof to preponderance of the evidence (50% + a feather), and it strongly discouraged them from allowing the parties to directly question one another. It also approved depriving accused students of a lawyer and even the opportunity to hear the witnesses against them, instead allowing one person to investigate the charges and on their own determine guilt. The Department of Education threatened to withhold federal funding from universities that did not comply with the Dear Colleague Letter, and it began publishing a list of those under investigation.

The Dear Colleague Letter has resulted in students being thrown out of school without a full and fair hearing. In July 2015 a judge ordered the University of California, San Diego to reverse the suspension of a male student because the disciplinary proceedings violated his due process rights, and in March, the Massachusetts District Court ruled in favor of a Brandeis University student who had been found responsible for "serious sexual transgressions." The court wrote, "Brandeis appears to have substantially impaired, if not eliminated, an accused student's right to a fair and impartial process."

What's at stake here isn't some mere technicality; process is the lifeblood of American justice. The right to a jury trial protects us against biased judges and overzealous prosecutors, and the right to confront and cross-examine witnesses allows us to hear and challenge the evidence against us. Even innocent people may have a hard time defending themselves, and lawyers act as an essential barrier between the accused and the state. Because we value freedom, we place the heavy burden on the government of proving its criminal case beyond a reasonable doubt. We provide these protections even to those charged with heinous crimes because we know that without them, there is a strong chance that a person will be held responsible for crimes they didn't commit.

Still, the Department of Education and its supporters stand by this reduction in procedural rights. They contend rightfully that campus disciplinary proceedings aren't criminal and so the constitution doesn't require the same degree of protection. They justify lowering the standard of proof to preponderance because it is used in other discrimination hearings. But this second argument is disingenuous. If the Department of Education wants to base its procedural protections on other discrimination cases then it should provide all the same rights and not just cherry pick the ones that disadvantage the accused. Title VII is a comprehensive way of thinking about discrimination in the employment context, and it provides for a number of rights including the right to a jury trial in some circumstances, and with it the right to counsel, the right to confront and cross-examine witnesses, and the right to a unanimous verdict.

The Department of Education has used misleading data and a hypocritical invocation of the law to reduce fundamental rights. Although it was no doubt motivated by the best of intentions, this ends-justifies-the-means approach is dangerous. It implies that it is acceptable to destroy the futures of some innocent students if it will result in the expulsion of at least one guilty one.

But it is not acceptable. Accused students do not face jail, but they do risk expulsion, which can forever derail their chance of success. With stakes this high, universities need to have robust procedural protections including a standard of proof set at clear and convincing evidence. They need not have a lawyer, but they should have a trained advocate. Where a case turns on the credibility of the parties, the accused must have the right to question his accuser. To minimize trauma, the questioning should happen through the trained advocate, and it should be closely monitored. Finally, universities should provide for an adjudicatory hearing in which an independent fact finder determines guilt. Emphasizing process benefits more than just the accused. Studies have shown that procedural fairness promotes law abidingness and increases cooperation with the police and community participation in fighting crime.

When parents send their kids off to school, they want to make sure that universities will keep them safe. That means protecting them from sexual assault, but it also means guaranteeing that they have the right to fully defend themselves if they are accused of a crime, especially if it is something as serious as rape.