Even with that concession, the blueprint is a document full of ominous portent: for the fairness of the disciplinary processes that have now come under federal prescription, for the once proud independence of the higher‐education sector, and, yes, for the continued health of what passes for free speech on the American campus.
The new scheme did not emerge out of the blue. Many of its elements were already discernible two years ago when the Obama appointee who then headed OCR, Russlynn Ali, sent universities a “Dear Colleague” guidance letter that made something of a stir in the press. Notably, the letter announced that it would now be deemed a violation of Title IX, the federal sex‐discrimination law, for a university to require “clear and convincing evidence” of wrongdoing before disciplining a student or faculty member charged with sexual misconduct. That is, it would be a violation to follow what former Education Department lawyer Hans Bader calls a “strong presumption of innocence” on such matters. The only acceptable standard from now on would be one of a “preponderance of the evidence”—often described as a 51 percent likelihood that the accused is guilty as charged. The University of Virginia, Brandeis University, Stanford University, and other leading institutions promptly changed their discipline policies to conform to the new diktat. While the 2011 letter did include a perfunctory acknowledgment that accused persons deserved the benefit of due process, its thrust on this and many other points was consistent: The disciplinary process should be made more welcoming for accusers, even if that meant stripping away protections for the accused.
Such protections varied considerably from one college to the next, given the natural diversity among institutions of higher learning. While few, if any, colleges tried to invest disciplinary proceedings with the procedural rigor of a criminal‐law trial, many did consider it meet and proper to make sure accused students and faculty were promptly informed of charges, had a chance to confront accusers, had an avenue of appeal, and so forth.
The student movement of the 1960s generated a certain amount of pressure toward more elaborate due process: Demonstrators who had occupied the university president’s office were not about to let some kangaroo court expel them without calling in a celebrated radical lawyer to probe every procedural defense.
But then came modern feminism, and in particular its foundational conviction, dating back at least to Susan Brownmiller’s Against Our Will (1975), that the prospect of sexual assault by men is a defining feature of the oppression of women for which male‐dominated society generally, not just individual offenders, should take the rap. And it must be said that the modern American college campus has sometimes furnished fuel for Brownmiller’s critique: For not a few women, surveys suggest, the danger of being raped will peak during their college years. It’s hard to be sure of this because, as Christina Hoff Sommers has pointed out, estimates of the incidence of campus sexual assault vary wildly depending on the source you consult. Officials at OCR insist that 1 in 5 women at college suffer sexual assault—truly a terrifying number. But then, a different federal agency estimates that the figure is 1 in 40—still unsettlingly high, but an eight‐fold difference from 1 in 5. To reach the higher figure, researchers categorized as sexual assault a variety of behaviors that not everyone agrees are such, Sommers has written, including unsought, attempted kisses and sex that takes place while one or both parties are intoxicated.
If one uses the broadest definition of sexual assault observed on many campuses, a large share of seemingly consensual late‐night sexual interactions qualify. At Stanford and many other places, for example, intoxication in itself voids a claim of consent whether or not that drunkenness reaches a level of incapacitation. Other colleges provide that even milder states of being “under the influence” are enough to defeat consent.
Federal efforts to make the disciplinary process more friendly to complainants have been going on for years. They have taken the form not only of the 2011 guidance letter but also of compliance pressure from regional OCR offices. One recommended step, for example, is to introduce what is called an “informal” complaint procedure, whose goal, per a Yale administration document, “is to achieve a resolution that is desired by the [accuser],” the better for accusers to “regain their state of wellbeing.” As Brooklyn College’s K.C. Johnson has pointed out, this essentially therapeutic goal can result in a grievance mechanism “in which limited or no investigation occurs and in which the accuser retains all but total control of the process.” Such an approach is missing a component that might seem rather crucial—namely, a process for determining whether or not the accusation is true.
At Yale, the new informal processes resulted in at least one case in which a faculty member was placed on “monitoring,” as a result of a colleague’s complaint, without being informed that such a thing was happening. Worse yet, despite policies of confidentiality, word can leak out that someone has been accused in this informal process, as in the case of a star Yale quarterback whose unproved alleged misconduct wound up being splashed across the pages of the New York Times at dire expense to his reputation. This is a system in which the opportunity to be told that an investigation against you is going forward, to present evidence on your own behalf, and to seek a definite resolution to put the matter behind you, have effectively been dispensed with.
Other procedural rights have rarely fared better. OCR guidance “strongly discourages” colleges from letting accused parties cross‐examine their accusers. And while it does countenance a right of appeal, it specifies that if the defense side in a discipline case is given such a right, the complainant must be given one, too. This spells an end to the option of mirroring the well‐known arrangement in criminal proceedings, which grants the defense wider appeal rights than the prosecution gets so as to steer clear of any whiff of double jeopardy.
Washington University in St. Louis, revising its rules, specified that while the accused could bring an individual to assist at disciplinary hearings, that person could not examine parties or witnesses—thus making it less likely that holes would be exposed in a dubious story. Yielding to OCR’s insistence, Washington University also abolished the use of mediation in assault cases—even though its spokeswoman publicly regretted this step, saying that complainants had often valued and sought mediation. For its part, the University of Virginia began entertaining complaints based on conduct that had occurred many years in the past or far from its Charlottesville campus.
Despite OCR’s strenuous objections that it is respectful of the First Amendment, its new policy is sure to restrict protected speech. Already, despite numerous court decisions striking down campus‐wide “speech codes” as an encroachment on free speech, countless individual campuses continue to restrict unwelcome sex talk. According to Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE):