The Department of Education claims it is “committed to ensuring that all students feel safe and have the opportunity to benefit fully from their schools’ education programs and activities.” But this month, it issued a letter that will make some students — male students — less safe on the nation’s campuses.
The letter demands that schools reduce the protections afforded students who are accused of sexual harassment, which it defines so broadly that anyone whose request for a date is turned down may immediately be accused of it:
Sexual harassment is unwelcome conduct of a sexual nature. It includes unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence is a form of sexual harassment prohibited by Title IX. (p. 3)
The letter acknowledges that not all sexual harassment creates a hostile environment, but it does not limit its demands to cases that rise to that level. Look appreciatively at your classmate’s figure, pester her for a date every day even after she repeatedly asks you to stop, or knock her down in the back alley and rape her: the same concept and many of the same demands will apply.
One of those demands is that the complaint must be judged by a “preponderance of the evidence” standard. That means that if there is just the tiniest bit more reason to think that you are guilty than that you are innocent, you must be convicted. The standard is not only lower than the “beyond a reasonable doubt” standard used in criminal law, it is lower than the “clear and convincing evidence” standard used at many universities. Indeed, if an accuser makes up a detailed story and asserts it with confidence, and the accused has no clear recollection, this standard may lead to conviction.
Those who argue that student discipline shouldn’t offer the same protections as the criminal courts often argue that the two institutions are very different: student discipline has an educative function, so people should be less interested in procedural protections and more interested in working together for everyone’s benefit. But one big difference the advocates of this view often defend is that student discipline often is, and in their view ought to be, confidential.
And the Department of Education’s letter attacks that confidentiality in sexual harassment cases. Not only does it insist that accusers be made aware of decisions, it demands that they not be required to agree not to disclose them further.
What this means is that if you are convicted of rape by a preponderance of the evidence, the accuser can then go to the student paper and publish the fact.
You, on the other hand, may not accuse the accuser of making false rape charges, even if a preponderance of the evidence says you’re not guilty. That would be retaliatory harassment, and schools are required to protect accusers from retaliatory harassment. (p.16)
The assault on accused students’ procedural protections doesn’t end with the standard of proof. Normally, if you’re acquitted of misconduct, that’s the end of it, or ought to be. But this letter demands that if accused students are offered the opportunity to appeal convictions, students whose charges fail the first time around must be given the chance to appeal on the same terms. (p. 12)
Even before the case has been judged by the lax standard the letter prescribes, the department says schools should intervene to protect accusers from the accused — at minimal burden to the complainant. No mention is made of any value in limiting the burden on the accused. Thus, these interventions may be made, on no evidence beyond the accuser’s unsworn statement and before the accused has an opportunity to reply, with their full burden on the accused, even to the extent of taking him out of classes.
How bad will the effects on real students be? Probably not as bad as I have suggested: One hopes that school officials will act with some good sense. But in issuing this letter, the Department of Education has failed to meet that standard.
Here’s a legal analysis by a former lawyer for the department.