FIRE: One-Trick Ponies in Tinfoil Hats?

FIRE's defense of due process rights for students accused of sexual harassment and sexual violence continues to draw overheated responses from student conduct administrators.

Last week, Will responded to a May 13 blog post by Illinois State University Associate Dean of Students Richard Olshak, who criticized FIRE for our opposition to the Department of Education's Office for Civil Rights' (OCR's) "Dear Colleague" letter requiring universities to use a "preponderance of the evidence" standard when adjudicating claims of sexual violence.

On May 17, FIRE was again the topic of discussion on Olshak's blog, where he posted a guest comment by Dan Kast, a student conduct administrator at Colorado State University - Pueblo. Like Olshak several days before him, Kast relies more on name-calling than actual arguments. First Olshak called us "one-trick ponies." Kast ups the ante, deeming us one-trick ponies "in tinfoil hats."

Kast led off with the ad hominem argument that FIRE has a "lack of concern for, and disregard for the rights of, the victims of sexual assault." (For his part, Olshak's May 13 blog quoted NCHERM president Brett Sokolow stating that "all FIRE has done is to demonstrate that it could stand up for the rights of rapists everywhere.") I guess I should not be surprised to see yet another student conduct professional trot out this outrageous, and now tired, canard. After all, it is much easier to paint those who support due process rights as supporting or enabling sexual assault than it is to make a cogent argument for why requiring a lower standard of proof will somehow not undermine the accuracy and fairness of the student disciplinary process.

Kast also claims that FIRE is "alleging non-existent conspiracies to deprive the accused of fundamental fairness." (Hence his reference to our "tinfoil hats.") This is again nothing more than a distraction from the issues. FIRE has not accused anyone of conspiring against students accused of sexual offenses, but rather has repeatedly stated our belief that OCR's decision to require universities to use a preponderance of the evidence standard in adjudicating such cases seriously undermines due process and fundamental fairness on campus. Due process protections are in large part a safeguard against human fallibility and bias, and diminishing those protections will only compromise the fairness and accuracy of proceedings in a way that will harm everyone involved. No one benefits from a standard of proof that injects so much uncertainty into the process that it all but guarantees that some investigations will result in wrongful findings of guilt.

Moving past the rhetoric and on to the substance of Kast's criticisms, he argues--based on a blog I posted on May 13—that FIRE's opposition to the preponderance of the evidence standard is the result of "three faulty assumptions" about campus sexual assault and the campus disciplinary process. I will address these in turn.

1. "The main difficulty in resolving complaints of sexual violence is in identifying the perpetrator."

FIRE has never said this, nor is it our position. Rather, I pointed out that one of the many flaws of the preponderance standard is that in those cases involving an unidentified perpetrator (such as cases involving the use of date-rape drugs at fraternity parties), the preponderance standard increases the likelihood of holding the wrong person responsible. FIRE's opposition to mandating that the preponderance standard be used is based on our belief—regardless of whether a case involves a named or unnamed alleged perpetrator—that it is an unacceptable and unfair standard by which to adjudicate claims of such serious wrongdoing as sexual assault.

It is worth noting, however, that despite Kast's assertion that he has "never come across an allegation in which there was any confusion over the identities of the parties involved," universities take the issue of memory-erasing date rape drugs very seriously. Indeed, the website of Olshak's own Illinois State University contains a wealth of educational materials on the topic, including a list of "signs that you have may been drugged" such as "you feel as though someone had sex with you but you cannot remember any or all of the incident." Olshak might therefore be the perfect person to remind Kast that when date rape drugs are involved, it can indeed be difficult to identify the alleged perpetrator or perpetrators.

   2.    "Campus disciplinary processes are meant as a substitute for criminal prosecution."

Here, Kast again fundamentally mischaracterizes FIRE's position. Kast is referring to the section of my blog in which I criticize the argument that the preponderance of the evidence standard is appropriate in campus sexual assault proceedings because it is the evidentiary standard used in civil litigation. Nowhere do I say, as Kast claims, that campus disciplinary processes are meant as a substitute for criminal prosecution. FIRE has always insisted that cases of sexual assault should be reported to the police. Rather, I argue that because of the fundamentally criminal nature of sexual violence, the importation of civil evidentiary standards into what are essentially quasi-criminal proceedings (the adjudication of, in the case of rape and some other serious offenses, felonies by campus judiciaries) is inappropriate.

Supporters of the preponderance standard, including OCR, justify the standard by pointing out that it is the evidentiary standard used in civil litigation. But just as a campus disciplinary proceeding is not a criminal prosecution, it is not civil litigation either, and the comparison is misplaced. Civil litigation is a method of resolving disputes between private parties, and the available remedies—monetary payments from one party to another, for instance—reflect the fundamentally private nature of a civil action. In criminal cases, by contrast, the penalties reflect the strong societal interest in the outcome of the proceedings: incarceration and fines (paid to the government, rather than to the victim) reflect society's judgment that criminal conduct is a public harm, one which leaves the criminal owing a debt not only to the victim but to society as a whole.

Although campus judiciaries are not courts of law, the penalties—suspension, expulsion—imposed on students accused of conduct that is also criminal reflects the same fundamental assumption that someone found responsible for such actions should be removed from society as a whole. In the case of rape or sexual assault, this removal is joined with irreparable harm to the student's good name—a stigma that is likely to have devastating effects throughout a student's life. As such, the argument that the preponderance standard is appropriate in all campus judicial proceedings, including those for criminal offenses, simply because it is the evidentiary standard used in civil litigation is fundamentally flawed.

     3.    "OCR's recommendation that institutions utilize a preponderance standard represents a         change in how campus disciplinary processes operate."

FIRE recognizes that many colleges and universities now use a preponderance of the evidence standard when adjudicating claims of sexual violence. While FIRE disagrees with individual institutions' choice to use the preponderance standard in cases involving serious criminal conduct, the dramatic change is that the federal government is now mandating that all colleges and universities must use this standard or else risk losing federal funding. As a result, institutions that have chosen to treat rape and sexual assault like the crimes they are and employ a higher evidentiary standard are now required to lower the burden of proof.

And make no mistake—while preponderance of the evidence is a commonly used standard, a significant number of schools choose to use other evidentiary standards. According to a 2000 study conducted by the Association for Student Judicial Affairs (now the Association for Student Conduct Administration), more than one-third of schools surveyed did not use the preponderance standard. For these schools, OCR's new mandate means a fundamental change in how they conceive of the purpose and procedure of their campus judicial processes.

In addition, OCR's April 4 guidance elicited a quick response from a number of high-profile institutions; within weeks of the OCR letter, Brandeis, Stanford, and Yale all announced that they would be lowering their burden of proof to a preponderance of the evidence standard to comply with the new guidance. (In a particularly egregious example, one institution lowered the applicable standard of evidence from "beyond a reasonable doubt" to "preponderance of the evidence" in the middle of a student's sexual misconduct proceeding. The student was found guilty and suspended for two years.)

Interestingly, Kast states toward the end of his piece that "there is an ongoing debate over the appropriate standard of evidence, whether it be a preponderance, clear and convincing, or something else." Why, then, does he seem wholly untroubled by the fact that OCR has completely cut off this debate by requiring universities to use the preponderance standard or risk losing federal funding? If Kast truly believes this is a debate worth having, shouldn't he join FIRE in opposing this new mandate, allowing schools to continue the discussion and ultimately choose for themselves, rather than accuse us of "ignoring the plight of victims while alleging non-existent conspiracies to deprive the accused of fundamental fairness"?

As Will wrote last week, FIRE understands that our work as a watchdog group will necessarily result in some tension with student conduct administrators. At the same time, however, FIRE frequently works collegially and productively with administrators to protect students' free speech rights on campus, and we hope to do so in the area of students' due process rights as well. If OCR's mandate stands, there are still many other things universities can do to shore up student due process rights and improve the student conduct process for everyone involved, and FIRE is eager to be of help to administrators who wish to engage constructively on these issues. So instead of leveling outrageous accusations and impugning our motives, how about we all work together towards the goal of best protecting the rights of all students, including the accused?