June 15 2011
Carrie L. Lukas
Americans may disagree about the proper limits of government when it comes to providing a safety net and transferring wealth, but Americans of all political stripes are likely to agree that government's police powers need strict limits. News of a SWAT team under Department of Education orders breaking down a door of a suspected student loan delinquent appropriately made headlines as an example of government going too far.
People should be equally concerned about another Department of Education effort to push colleges and universities to change the way they handle claims of sexual assault. The Ed Department's new directive threatens that colleges that aren't aggressive enough in pursuing those accused of sexual harassment or assault could be considered out of compliance with Title IX and lose federal funding. Christina Hoff Sommers recently had a must-read article on this topic, and she explains what this new push will mean of campus:
Many colleges [disciplinary committees] employ a "beyond a reasonable doubt" or a "clear and convincing" standard. (Roughly speaking, "beyond a reasonable doubt" requires a 98-percent certainty of guilt; clear and convincing, an 80-percent certainty.) [The Department of Education's] Ali, however, orders all colleges to adopt the far-less-demanding standard of "preponderance of the evidence." Using that standard, a defendant can be found guilty if members of a disciplinary committee believe there is slightly more than a 50/50 chance that he committed the crime. That standard will make it far easier for disciplinary committees to try, convict, and punish an accused student (almost always a male).
Marching under the banner of Title IX and freed of high standards of proof, campus disciplinary committees, once relatively weak and feckless, will be transformed into powerful instruments of gender justice. At least, that is the fantasy. But here is the reality: Campus disciplinary committees-often a casual mix of professors, students, and an assistant dean or two-are well suited to resolving cases involving purported plagiarism and cheating, and violations of college rules on drugs and alcohol. But no one considers them prepared to adjudicate murder, arson, or kidnapping cases, or criminal assault. They lack the training and the resources to investigate and adjudicate felonies. So why are they expected to determine guilt or innocence in cases of rape?
Sommers also reminds us of how colleges have handled-or better mishandled-cases before:
In 2006 three Duke University lacrosse players were falsely accused of gang rape. They endured a nightmarish, yearlong ordeal in which abundant evidence of their innocence seemed not to matter at all-not to the police, not to the prosecutor, not to Duke's faculty or president. Protesters gathered outside the lacrosse house carrying a banner with the word CASTRATE, banging pots and pans, and chanting "Confess, confess!" Student vigilantes plastered the campus with "Wanted" posters bearing the players' photographs. Duke professors took out an ad in a local newspaper in support of the pot bangers and poster wielders. After living under suspicion for months, the players were ultimately exonerated by prosecutors, who dropped all charges: The athletes had been wrongly accused, and the North Carolina district attorney who had flamboyantly pressed and publicized the charges later recused himself and resigned, and was investigated and disbarred for unethical conduct in his prosecution of the case.
Now imagine that Ali's proposed sexual-safety regime had been in place when the district attorney's charges were pending, and the innocent young men had been put on trial before a committee of Duke professors, administrators, and students.
...Being a victim of rape is uniquely horrific, but being accused of rape is not far behind. If the person is guilty, then the suffering is deserved. But what if he is innocent? To be found guilty of rape by a campus tribunal can mean both expulsion and a career-destroying black mark on your permanent record. Such occurrences could become routine under the Ali dispensation.
There's a natural tendency to not want to focus on these issues. Certainly any questioning of measures that are billed as being designed to prevent or punish sexual predators risks being viewed as condoning abhorrent behavior. Yet the basic concept that someone is innocence until proven guilty deserves to be defended. Sadly, the circumstances that surround date rape on college campuses often make it very difficult to determine guilt. But that can't be a justification for throwing out the entire concept of due process. Men deserve protection too.