FIRE, the Foundation for Individual Rights in Education, is a little upset right now. I don’t blame them either. You see, for a group that supports individual rights in education, the new directive coming down from Uncle Sam has got to be a slap in the face. You see, sexual assault and sexual harassment are serious issues. However, now the federal government believes that the whole “without a reasonable doubt” thing is just to much trouble.
The new standard is called “preponderance of the evidence” standard. Sounds like the same thing, right? Not according to FIRE.
In response to new federal regulations announced last month that require colleges and universities to dramatically reduce students’ due process rights, the Foundation for Individual Rights in Education (FIRE) today sent an open letter to the United States Department of Education’s Office for Civil Rights (OCR) sharply criticizing the agency’s new requirements. Under the new regulations, announced in an April 4, 2011, letter from Assistant Secretary for Civil Rights Russlynn Ali, colleges and universities receiving federal funding must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. Institutions that do not comply face federal investigation and the loss of federal funding.
While sexual harassment and sexual attacks clearly need to be dealt with in any environment, there still needs to be due process. A “more likely than not” standard isn’t sufficient under our legal system, and it’s that way for a reason. You see, it’s not that difficult to provide a preponderance of the evidence to make it look like someone did something. One or two of your friends as witnesses and BLAM! Instant preponderance.
A “beyond a reasonable doubt” standard makes that a lot more difficult. Does it mean that sometimes the guilty walk? Unfortunately. However, it also protects a lot of innocent people from being labeled.
Now, don’t get me wrong here. If this were a private school doing this, they would be free to employ any standard they want. It would be wrong, but I’d have no say in the matter. However, this applies to public colleges and universities. This is supported with our tax dollars, so I’m damn sure going to share my thoughts on the matter.
Of course, if that wasn’t enough all on its own, FIRE also points out that there’s a free speech infringement going on.
FIRE’s concerns about the threat to due process rights presented by OCR’s new mandate are exacerbated by the fact that many colleges and universities continue to maintain overly broad harassment codes that prohibit protected speech. FIRE’s most recent survey of university policies impacting student speech, Spotlight on Speech Codes 2011: The State of Free Speech on Our Nation’s Campuses, revealed that 67 percent of the 390 colleges and universities analyzed maintain policies that seriously infringe upon students’ free speech rights. For example, the University of Florida lists “humor and jokes about sex that denigrate a gender” as an example of actionable sexual harassment, and Illinois State University bans “discussions about sexual activity” as sexual harassment. Universities also enforce codes of conduct that define sexual assault in vague, inexact ways. For example, in April 2010, Duke University instituted a “sexual misconduct” policy that could render a student guilty of non-consensual sex simply because he or she is considered “powerful” on campus.
[Again, emphasis is mine]
Aren’t college campuses supposed to be more enlightened than the wilds of Southwest Georgia? If that’s true, then how in the hell did this happen? These draconian regulations listed above, coupled with the new directives from the federal government, means a student can be booted out of college, and have his future screwed, because someone claimed he told a dirty joke and provided a single witness to back it up. What. The. Hell?
I don’t think anyone believes that sexual harassment is a good thing. I know I don’t, and I don’t know anyone who does. The idea of someone getting away with it is abhorrent to me, but not as abhorrent as this. This will catch many innocent people in the act of doing nothing truly wrong.
What’s really scary is the possibility that some of this stuff will work its way into society as a whole. Now that is the thought that will keep me awake at night.