People in the D.C. area maye be familiar with the tragic tale of Fairfax teacher Sean Lanigan, who was falsely accused of sexual molestation, resulting in termination and a destroyed reputation. As pointed out by friend of Cato and Cato Supreme Court Review contributor Hans Bader, however, the Department of Education is pushing a policy that would allow for more Sean Lanigans, even in cases not involving anything close to rape or molestation:
If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing. It sent a letter to school officials on April 4 ordering them to lower the burden of proof they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.
As Wendy Kaminer explains, the DoE would also like to strip the accused of their right to cross-examination:
Campus investigations and hearings involving harassment or rape charges are notoriously devoid of concern for the rights of students accused; "kangaroo courts" are common, and OCR 's letter seems unlikely to remedy them. Students accused of harassment should not be allowed to confront (or directly question) their accusers, according to OCR, because cross-examination of a complainant "may be traumatic or intimidating." (Again, elevating the feelings of a complainant over the rights of an alleged perpetrator, who may have been falsely accused, reflects a presumption of guilt.) Students may be represented by counsel in disciplinary proceedings, at the discretion of the school, but counsel is not required, even when students risk being found guilty of sexual assaults (felonies pursuant to state penal laws) under permissive standards of proof used in civil cases, standards mandated by OCR.
Now, it is undoubtedly extraordinarily difficult for a rape victim to face her attacker, but lowering the standards under which someone is judged for that crime and not allowing the accused to question his accuser opens the door to using accusation as a weapon, just as in Lanigan's case or that of the Duke lacrosse team. Justice (what lawyers call "due process") demands, among other things, that both accuser and accused have their day in court, and that there be a presumption of innocence. It is no more just for an innocent person to be smeared and forever tarnished -- if not convicted and imprisoned -- than it is to let a guilty man go free. Indeed, as Blackstone famously said, "Better that ten guilty persons escape than that one innocent suffer."
What's more, as Foundation for Individual Rights in Education president Greg Lukianoff details, it's not just accused rapists whose rights are prejudiced under the new OCR policy, but those who make bad jokes:
California State University–Monterey policies state that sexual harassment “may range from sexual innuendoes made at inappropriate times, perhaps in the guise of humor, to coerced sexual relations.” UC Berkeley lists “humor and jokes about sex in general that make someone feel uncomfortable” as harassment. Alabama State University lists “behavior that causes discomfort, embarrassment or emotional distress” in its harassment codes. Iowa State University states that harassment “can range from unwelcome sexual flirtations and inappropriate put-downs of individual persons or classes of people to serious physical abuses such as sexual assault.”
This disconnect between basic principles of free speech and due process creates what Lukianoff calls "a perfect storm for rights violations":
By making it clear that OCR would be aggressively pursuing harassment claims, by mandating extensive changes to many universities’ due process protections, but not requiring universities to adopt a uniform standard for harassment, OCR has supercharged the power of existing campus speech codes. OCR could have done our nation’s colleges a favor if it required universities to adopt a uniform definition of harassment in the same breath as it required them to aggressively police it.
FIRE has done heroic work in protecting student rights, so you should really read all of Lukianoff's indictment of the new policy.
The Department of Education needs to rescind/clarify this mess. Speech is not a crime, but even the rights of those accused of crimes should not be subordinated to misplaced compassion or political correctness.