Earlier this week, the U.S. Department of Education wrapped up its investigation of Princeton University's sexual harassment and assault policies. The findings were unsurprising, though still striking: the government essentially accused the university of violating federal anti-discrimination law by extending too much due process to accused students.
Princeton had been one of the last hold-outs on the standard of proof in college rape trials. The university required adjudicators to obtain "clear and convincing" proof that a student was guilty of sexual assault before convicting him. That's too tough, said DOE. As part of its settlement, Princeton is required to lower its evidence standard to "a preponderance of the evidence," which means adjudicators must convict if they are 50.1 percent persuaded by the accuser.
Princeton's old policy was also criticized by DOE for allowing accused students to appeal decisions, but not accusers. Both this practice and the evidence standard were revised under Princeton's new, DOE-compliant policy.
Both of these are worrying changes for civil libertarians. Using a low burden of proof in college rape trials is very problematic, since adjudicators are poorly equipped to determine innocence or guilt in the first place. They just don't have the right training. That's part of the reason 28 Harvard University law professors have spoken out against their own campus's new, similarly unfair policy.
And while DOE claims that Title IX of the Education Amendment of 1972 requires colleges to use the preponderance of evidence standard, no court or Congress has ever weighed in on the matter. As Joe Cohn of the Foundation for Individual Rights in Education told InsideHigherEd:
While the Department of Education has the ability to determine what exactly violates Title IX and potentially pull federal funding from colleges who are in violation, preponderance of evidence has not been codified by Congress. The Campus SaVE act does not dictate what standard a college should use, only requiring that institutions disclose what that standard is. Joe Cohn, legislation and policy director at the Foundation for Individual Rights in Education, said that the department is "on shaky ground when they insist that preponderance of evidence is the only acceptable standard of proof under Title IX," because, legally, it is only the current administration's interpretation of the law.
"But it doesn't matter if their interpretation is off by an inch or a mile, because who is willing to be a test case on that," Cohn said. "With federal funding at stake, institutions are too afraid to engage and criticize a regulating body. This type of chilling atmosphere is not helpful to anyone. Nobody is willing to take a stand."
On the other side, Laura Dunn, executive director of victims' advocacy center SurvJustice, hilariously told InsideHigherEd that "ingrained male privilege" was the only reason for using a lower evidence standard. Thankfully, the federal government is beating that tendency out of colleges, she said:
"It's mostly at these elite schools that we see a real pushback," Dunn said. "To put it bluntly, I think it's arrogance and ingrained male privilege, but I think they're starting to get the message."
It's very discouraging to see support for robust due process written off as a symptom of male privilege. Of course, plenty of women are concerned that these new policies, far from chipping away at male privilege, unfairly punish men. (I interviewed one of them for my August article on criminalizing campus sex.)
As for Princeton's former policy of only allowing accused students to appeal decisions, while that may seem unfair at first glance, it actually makes sense. Hans Bader—a senior attorney at the Competitive Enterprise Institute and former Office for Civil Rights lawyer—pointed out to me that the American criminal justice system typically permits only defendants to appeal verdicts. This follows from the principle that accused persons should have every opportunity to prove they are innocent, but once they are found innocent, they can't be retried.
"The Education Department's claim that it violates Title IX to allow the accused but not the accuser to appeal is hard to reconcile with the fact that courts have never construed civil rights laws to ban that," Bader told Reason.
Unfortunately, no legal authority will ever have the chance to examine DOE's very due-process-unfriendly interpretation of the law, because colleges are either too afraid of standing up to the feds, or have an ever-weakening commitment to civil libertarian values. Or both.