Over the past year, FIRE has led a campaign of civil liberties
organizations against the Obama administration’s infamous “Dear Colleague”
letter, which ordered colleges and universities to lower the burden of proof in
their on-campus judicial proceedings. The letter demanded that all universities
receiving federal funds employ a “preponderance of the evidence” standard (in
other words, a 50.1 percent degree of certainty) to determine guilt on
allegations of sexual assault.
Given that campus judicial procedures already are tilted,
often wildly so, in favor of sexual-complaint accusers, the letter has produced
a guilty-unless-proven-innocent standard for accused students. In at least one
case, that of Caleb Warner at
the University of North Dakota, the standard (before FIRE’s involvement)
amounted to guilty even when proved innocent by the local police.
The real-world effects of that standard were revealed in a
horrifically framed New York Times article
today on former Yale quarterback Patrick Witt.
In what sports media columnist Richard Deitsch accurately
described as a “bombshell,”
the article, penned by Richard Pérez-Peña, revealed that earlier this fall, a
fellow student accused Witt, a Rhodes Scholar finalist, of a sexual assault.
The accuser did not file a complaint with the New Haven police. Nor at least on the basis
of the material presented by the Times, did she go to the hospital for a rape
exam. But she did turn to the new, post-“Dear Colleague” Yale judicial process.
In that process, the accuser didn’t even appear to have filed a formal complaint
Somehow, however, the Rhodes Trust found out about his
“informal” complaint, and demanded that Yale re-endorse Witt before moving
forward with his candidacy. In response, Witt withdrew his Rhodes application,
though he did so in a way that implied that the withdrawal was caused by a
scheduling conflict between his Rhodes
interview and the Harvard-Yale game. The article also leaves the impression
that Witt has withdrawn from Yale.
In what could only be deemed a wildly
misleading framing, here’s how Pérez-Peña described the effects of the
“Dear Colleague” letter: “The accusation against Witt, a history major who has
expressed interest in a career in politics, came as Yale’s handling of sexual
harassment and assault is under intense scrutiny, including an investigation by
the United States Department of Education. Last year, Yale overhauled its
systems for handling such complaints and imposed a five-year ban on campus
activities by a fraternity, Delta Kappa Epsilon, whose members and pledges had
engaged in highly publicized episodes of sexual harassment.”
Yale “overhauled its systems for handling such complaints,”
because it was “under intense scrutiny.” No mention of the lowered burden of
proof in a system already tilted toward the accuser. No mention of the civil
liberties impact of this new system. No mention, indeed, of anything that the
“Dear Colleague” letter demanded. A typical Times reader would come away from
the article with a false belief that the system changed from a structure that favored
potential rapists to one that’s fair and balanced.
But, of course, this is the New York Times. And if the Duke
lacrosse case left no other legacy, it’s that the
paper frames its coverage of campus allegations of sexual assault in such a
way that ignores issues of due process.
I don’t know if Witt is innocent or guilty. But I do know
that, at least at this stage, he’s entitled to the something beyond a
presumption of innocence, since his accuser did not file a report with police,
receive a medical exam, or even file a formal campus complaint (in which he
would have had some, albeit minor, due process protections). In the upside-down
post-“Dear Colleague” era, however, Witt becomes the highest-profile case of a
student who chose to withdraw from school rather than face a kangaroo system of
“justice.” That’s not an angle the Times has deemed even worthy of a mention.
KC Johnson is a Professor of History at Brooklyn College and the CUNY Graduate Center, and author of the blog Durham-in-Wonderland. He is co-author, with Stuart Taylor Jr., of “Until Proven Innocent.“