AAUP to Office for Civil Rights: New Evidence Requirement Conflicts with Our Standards, Jeopardizes Academic Freedom and Tenure

The American Association of University Professors (AAUP) has joined FIRE in asking the U.S. Department of Education's Office for Civil Rights (OCR) to rescind its new mandate that colleges use a "preponderance of the evidence" standard of proof when adjudicating cases of alleged sexual harassment or assault. The AAUP's stance on this issue defends fundamental fairness and due process in higher education, and we are grateful for this important support.

In a June 27, 2011, letter to OCR, Gregory F. Scholtz, Director of the AAUP's Department of Academic Freedom, Tenure, and Governance, explained that the requirement demands a "lower standard of proof than what we consider necessary to protect academic freedom and tenure," and noted that the lowered standard conflicts with AAUP recommendations. (The AAUP has not commented on other new OCR efforts in this area, here focusing only on the issue regarding evidentiary standards.)

As regular Torch readers know, OCR is demanding that nearly all colleges in America use our judiciary's lowest standard of proof, the "preponderance of the evidence" standard--basically, a mere 50.01% certainty of guilt. But this demand will ensure that a lot more innocent students and faculty members will be found guilty of sexual harassment or assault, with their reputations and careers ruined. Any college that doesn't comply will put its federal funding--sometimes as much as half a billion dollars per year--in jeopardy. 

This mandate contrasts with the AAUP's longstanding recommendation of a higher standard of proof, the "clear and convincing evidence" standard. The AAUP's support of the clear and convincing evidence standard is based on what Scholtz identifies as "basic principles of academic freedom and tenure," and the AAUP recommends that this standard be used in cases that could lead to dismissal from a college or university. 

Scholtz writes:

Our Association's interest in this mandate of the preponderance of the evidence standard of proof stems from our longstanding commitment to basic principles of academic freedom and tenure, as enunciated in the foundational 1940 Statement of Principles on Academic Freedom and Tenure ... developed jointly by the AAUP and the Association of American Colleges (now the Association of American Colleges and Universities [AAC&U]) and endorsed by more than 200 scholarly and educational organizations.

AAUP-supported standards for dismissal of faculty members derived from the 1940 Statement are set forth in Regulation 5 of our widely adopted Recommended Institutional Regulations on Academic Freedom and Tenure ..., first issued in 1957. Regulation 5c(8) provides that, in dismissal cases, "[t]he burden of proof that adequate cause exists rests with the institution and will be satisfied only by clear and convincing evidence in the record considered as a whole" (emphasis added [by Scholtz]).

Since charges of sexual harassment against faculty members often lead to disciplinary sanctions, including dismissal, a preponderance of the evidence standard could result in a faculty member's being dismissed for cause based on a lower standard of proof than what we consider necessary to protect academic freedom and tenure. We believe that the widespread adoption of the preponderance of the evidence standard for dismissal in cases involving charges of sexual harassment would tend to erode the due-process protections for academic freedom.

In a May 5 letter, our colleagues at the Foundation for Individual Rights in Education wrote to urge, among other things, that the Office [for] Civil Rights of the U.S. Department of Education rescind its mandate of the preponderance-of-the-evidence standard. Our request regarding cases of potential dismissal is the same.

So far, neither FIRE nor the AAUP has received a response from OCR to either of our letters. 

In addition, The Chronicle of Higher Education has picked up the news, while some of the many individuals who have joined FIRE's efforts are identified in other media coverage here. While doing a better job of bringing the guilty to justice is a valuable goal for universities to have, it is simply unacceptable to jeopardize bedrock principles such as the meaningful presumption of innocence in order to achieve that goal, destroying the lives and careers of innocents in the process.

We encourage the rest of the 200-plus scholarly and educational organizations that have endorsed the 1940 Statement to stand with FIRE and the AAUP on this issue, not only for fundamental fairness and due process but also for the institutional freedom of colleges and universities to manage their own affairs without the U.S. government's threat to their federal funding if they don't accept OCR's mandate.