Brown University’s Sexual Misconduct Policy Threatens Fundamental Fairness
March 19, 2012
by Adam Kissel
About a month ago, Brown Daily Herald journalist Hannah Abelow wrote about changes to Brown University's sexual misconduct policy. Things aren't looking good for justice at Brown.
First, as Abelow notes, students who have alleged sexual misconduct are now allowed to appeal even if the accused is found to be innocent. Far from being a "minor" change as stated in the article, this change creates a "double jeopardy" situation, as FIRE has noted before, where a student can be tried a second time for an offense of which he or she has already been found not guilty.
It's hard to blame Brown too much for making this change, since it is now required by the federal Department of Education's Office for Civil Rights (OCR) whenever a university evaluates claims of sexual misconduct.
Furthermore, since Brown offers the accused the prospect of a lesser sanction as a result of the appeal, Brown now offers the accuser a chance to increase the sanction on the accused:
For hearings involving charges under Offense III and Offense IV for harassment based on sex/gender, sexual orientation, gender identity, or gender expression, the complaining witness shall have the right to appeal on the same terms as the respondent, provided however that if the Appeal Officer determines that the appeal has merit he/she may increase the severity or terms of a sanction, or remand the matter to an appropriate hearing officer or body.
This also was arguably required by OCR. But what makes this policy change much worse is the fact that Brown still uses the incredibly low standard of proof of a "reasonable basis" (PDF) for finding the accused student guilty. I wouldn't even call that a standard of "proof," since it is lower than the "preponderance of the evidence" (or "more likely than not") evidentiary standard, the one mandated by OCR. After all, there is still a "reasonable basis" to believe that the Sun revolves around the Earth (it sure looks that way when you look up), although there is an overwhelming amount of evidence against it when you look a little more carefully and do the math.
The "reasonable basis" standard is apparently the one that was in place when Brown kicked student William McCormick III out of school after he was accused of sexual misconduct. Due to the way his case was handled (the accuser's father is a wealthy Brown donor), McCormick sued, the case made national news, and the case settled out of court. I'd say that's a pretty "reasonable basis" for thinking that Brown might need to make some changes.
FIRE has argued that even the "preponderance of the evidence" standard (requiring approximately 50.01% proof) is far too low and threatens fundamental fairness. When someone can be kicked out of school just because the university has what you might call a solid hunch that he or she is guilty, and then when the accuser can try a second time to get Brown to acknowledge a "reasonable basis," however slight, for a finding of sexual harassment, the accuracy and justice of student discipline at Brown are at grave risk.
At the least, Brown should raise its standard of proof to the minimum that even OCR requires in the name of equity.