As Harvey Silverglate and Kyle Smeallie pointed out in Minding The Campus, the recent letter from the Obama Administration’s Department of Education’s Office for Civil Rights outlines a policy shift that represents perhaps the gravest threat to civil liberties on campus in a generation.
The letter’s provisions would be gravely damaging even in its narrowest possible scope, by confining its tenets to how campuses respond to allegations of sexual assault. In the Chronicle, Christina Hoff Sommers notes that the OCR’s demand that universities use a “preponderance of evidence” standard in adjudicating all campus allegations of sexual assault “advocates procedures that are unjust to men.”
Campus disciplinary procedures already are heavily tilted in favor of the accuser and against the due process rights of the accused; the OCR’s new policy of requiring campuses to independently investigate all allegations of sexual assault (rather than, as should be done, have such matters handled by the criminal justice system) threatens to turn college campuses into Star Chambers.
Take what was an extreme example that seems to be the new norm. In the aftermath of the lacrosse case, Duke redid its campus sexual assault policies. Although the campus was home to the highest-profile case of a false criminal allegation in a decade, the university adjusted its procedures in ways that eerily anticipated the OCR’s unjust new approach.
Duke’s sexual misconduct policy was almost a caricature of the anti-due process codes common in race/class/gender-obsessed campuses. Filled with items that seemed to presume guilt and frustrate attempts by the falsely accused to defend themselves, it contained two particularly remarkable clauses.
First: “Conduct will be considered ‘without consent’ if no clear consent, verbal or nonverbal, is given.”
What constitutes “nonverbal” consent in sexual intercourse? The policy didn’t say. Nor did it say how male Duke students could or should record evidence of such “nonverbal” consent so as to protect themselves against future false allegations.
Second: “Real or perceived power differentials between individuals may create an unintentional atmosphere of coercion.”
How, precisely, could or should a male college student be held liable for “unintentional” outcomes from a “perceived” power differential? Duke’s policy did not explain. But on a campus which sees American society as dominated by sexist and racist sentiments, any white, male student who sleeps with a female student (and especially a black female student) could be deemed guilty under the new OCR “preponderance of evidence” guidelines of benefiting from a “perceived” power differential, and therefore—even if unintentionally—coercing his partner.
In 2009, FIRE vice president Robert Shibley wrote, "Duke's new sexual misconduct policy could have been written by Mike Nifong. Members of the men's basketball team could be punished for consensual sexual activity simply because they are 'perceived' as more powerful than other students after winning the national championship. Students who engage in sexual behavior after a few beers could be found guilty of sexual misconduct towards each other. This is not just illogical and impractical, but insane. Given its experience during the lacrosse team rape hoax, Duke, of all schools, should know better than to institute such unjust rules about sexual misconduct." FIRE urged Duke to, at the very least, rework the vague tenets of its policy, such as those noted above, for which even demonstrably innocent males would have no possible defense.
But the university stuck to its guns. FIRE’s concerns were ignored; the new policy remained in place. Now the victims of this policy will be judged according to the OCR’s new procedures. And, of course, as Sommers’ piece points out, other universities are reworking their sexual assault policies (consider, for instance, the situation at Stanford) to see if they can match Duke for a guilt-presuming structure.
Yes, the preponderance standard dangerously lowers the burden of proof given the potential consequences, but there is more. The wording of Duke’s first clause you referenced is indefinably vague, but it also shifts the burden of proof entirely to the accused. It presumes that this “non verbal consent” is absent unless the accused can find it. I am sure the OCR will justify its policy shift as being consistent with the common preponderance standard applicable in civil cases, but neither criminal nor civil law allows a finding of liability based only on an unproven accusation that the accused fails to adequately refute. Stalin would have approved of this system.