FIRE, the Foundation for Individual Rights in Education, has sent a strongly worded letter to the Department of Education’s misnamed Office for Civil Rights expressing deep concern over new standards of proof to be in used in accusations of sexual harassment or assault. The feds recently passed a law mandating that schools adopt a “preponderance of evidence standard” in such cases, backed with the ominous threat of withdrawal of federal funding, which these days is a grave threat indeed.
Excerpt:
II. Right to Due Process
OCR’s April 4 letter mandates that recipient institutions implement certain procedures governing responses to allegations of sexual harassment and sexual violence. While some of these newly announced requirements are beyond the scope of FIRE’s mission, others implicate due process rights and call into question the basic fairness of disciplinary proceedings against those students accused of sexual harassment and sexual violence. Given the extreme gravity of such accusations and the potential impact of a guilty finding, FIRE is deeply concerned that OCR’s new requirements erode necessary due process protections.
A. Standard of Proof
OCR’s April 4 letter mandates that colleges and universities receiving federal assistance must employ a “preponderance of the evidence” standard within their grievance procedures governing sexual harassment and sexual violence in order to satisfy their legal obligations under Title IX. Specifically, the April 4 letter dictates:
[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.
The letter makes clear that schools maintaining a higher evidentiary standard-such as the “clear and convincing” standard-for disciplinary procedures involving allegations of sexual harassment and sexual violence will be subject to OCR review. As the letter states: “In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaints.”
In mandating that schools adopt a preponderance of the evidence standard in their grievance procedures governing sexual harassment and sexual violence allegations, OCR has broken significant—and troubling—new ground. In contrast to the April 4 mandate, the 2001 Guidance is silent with regard to the standard of proof required of schools’ grievance procedures. While the 2001 Guidance stated that recipient institutions must maintain “grievance procedures providing for prompt and equitable resolution of complaints of discrimination on the basis of sex,” it did not specify that a specific burden of proof must be employed in university grievance procedures. Indeed, the 2001 Guidance granted schools considerable autonomy in determining the particular protocols to be utilized on their campuses, noting that “[p]rocedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, State or local legal requirements, and past experience.” However, the April 4 letter’s mandate revokes this discretion-and with it, schools’ ability to grant students due process protections that are appropriate for the gravity of the offenses of which they are accused.
What is most interesting about the letter is that it indicates that the left is finally starting to take issue with some of the more repressive and draconian measures to enforce militant feminism. When movements start out with some legitimate grievances, the left tends to support their excesses for a period of time, but eventually clearer-headed types begin to see the excesses for what they are: the same supremacism they sought to combat from the beginning.
It is becoming increasingly clear that whatever grievances that existed in the beginning of second wave feminism no longer exist, or are nearing the point of irrelevance, and additional measures are undertaken purely in self-interest to the detriment of innocents. The new policy on sexual assault on campus all but guarantees that innocent men and boys will pay a heavy price for feminist supremacy, and anyone with a sense of social justice and moral balance cannot support it in good conscience.
Although it will likely start slowly, I think we’ll see more resistance of feminism from the left in coming years, and soon the aging feminist power brokers will come to be seen as reactionaries themselves.
