New AAUP Statement on Campus Sexual Assault: ‘Clear and Convincing Evidence’ Standard ‘Necessary’ to Protect Due Process, Shared Governance

Yesterday, the American Association of University Professors (AAUP) issued a new statement regarding campus sexual assault. Among other recommendations, the AAUP's statement recommends that campus judicial proceedings employ the "clear and convincing evidence" evidentiary standard in adjudicating sexual assault cases. Titled Campus Sexual Assault: Suggested Policies and Procedures (PDF), the statement was approved last October by the AAUP's Committee on Women in the Academic Profession and adopted in November by the AAUP Council.

Noting that the AAUP has long maintained that "the freedom to teach and to learn is inseparable from the maintenance of a safe and hospitable learning environment," the statement presents a broad set of recommendations to campus policymakers regarding responses to campus sexual assault. The statement outlines a series of guiding proposals, including closer campus coordination with local law enforcement and off-campus health care and community service providers; standardized definitions of "sexual assault," "sexual harassment," "sexual abuse," and "rape," consistent with state and local law; widespread dissemination of institutional policies and reporting procedures; and educational efforts directed at the student community, with specific programming for men and potential bystanders to incidents of sexual misconduct.

The statement recognizes the Department of Education's Office for Civil Rights' (OCR's) recent efforts to address sexual misconduct on campus—most notably the April 4, 2011, "Dear Colleague" letter, which mandated a set of procedural requirements for campus judicial proceedings. Most controversially, OCR's directive requires universities accepting federal funding (that is, virtually all institutions) to employ our judiciary's lowest evidentiary standard, the "preponderance of the evidence" standard, when adjudicating allegations of sexual misconduct. FIRE has repeatedly criticized the requirement, as this low standard provides inadequate protection to students and faculty accused of serious and potentially criminal misconduct.

The AAUP's statement addresses OCR's requirement directly, arguing that the intermediary "clear and convincing evidence" standard strikes the necessary balance between protecting due process and shared governance rights and providing justice for victims of sexual misconduct:

In an effort to improve the likelihood of bringing perpetrators to justice, the Office for Civil Rights has proposed lowering the standard of proof in disciplinary proceedings involving sexual assault. The office argues in its "Dear Colleague Letter" that replacing the prevailing standard of "clear and convincing evidence" with a "preponderance-of-the-evidence" standard would help level the playing field for victims of sexual violence. The proposal has in general been favorably received by women's advocacy groups and sexual-assault support agencies but has been opposed by many organizations representing both progressive and conservative values. The AAUP advocates the continued use of "clear and convincing evidence" in both student and faculty discipline cases as a necessary safeguard of due process and shared governance. The committee believes that greater attention to policy and procedures, incorporating practices we have suggested here, is the more promising direction.

This position is consistent with both longstanding AAUP recommendations and the organization's recent letters on the matter. The AAUP had previously argued for use of the "clear and convincing evidence" standard in two letters sent to the Dear Colleague letter's author, former Assistant Secretary for Civil Rights Russlynn Ali.

The first letter, sent in June 2011 from Gregory F. Scholtz, Director of the AAUP's Department of Academic Freedom, Tenure, and Governance, noted that:

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.

The second letter (PDF), sent in August 2011 from former AAUP President Cary Nelson and Ann E. Green, Chair of the AAUP's Committee on Women in the Academic Profession, echoed Scholtz's concerns. Nelson and Green wrote:

While we strongly support the bulk of "Dear Colleague," share your commitment to "providing all students with an educational environment freed from discrimination," and agree that "the sexual harassment of students, including sexual violence, interferes with students' right to receive an education," we are concerned about two areas where academic freedom may potentially be violated.  The first concern is the "preponderance of evidence" standard, and the second is the potential violation of academic freedom for those who teach courses with sexuality or sexual content.

Given the seriousness of accusations of harassment and sexual violence and the potential for accusations, even false ones, to ruin a faculty member's career, we believe that the "clear and convincing" standard of evidence is more appropriate than the "preponderance of evidence" standard.  Our colleague Gregory Scholtz, Associate Secretary and Director of AAUP's Department of Academic Freedom, Tenure, and Governance, articulated this to you in his June 27th, 2011, letter:

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 evidence standard for dismissal in cases involving charges of sexual harassment would tend to erode the due-process protections for academic freedom.

We echo his concerns. While clear policy statements and timely responses are key for both the complainant and the accused, preserving a higher standard of proof is vital in achieving fair and just treatment for all.  We urge you to reconsider "the preponderance of evidence" standard.

FIRE strongly agrees with the AAUP's consistent, principled, and clear stance on this important and contested question. As we have repeatedly argued, securing justice for victims of campus sexual assault does not necessitate abandoning due process and fundamental fairness. Given the marked lack of core due process protections in the vast majority of campus judicial systems, the adjudication of such serious, life-altering accusations requires more than our lowest standard of proof.

For more on FIRE's concerns about OCR's "preponderance of the evidence" mandate, please read our May 5, 2011, letter to Assistant Secretary Ali (to which we still have yet to receive a response); our "Frequently Asked Questions" about the Dear Colleague letter; and my colleague Joe Cohn's recent op-ed for The Chronicle of Higher Education. The entirety of our writing regarding OCR's Dear Colleague letter is available here. Inside Higher Ed has more on the AAUP's statement, as well.