Feds Punish Princeton For Liking Due Process Too Much

Earlier this week, the U.S.
Department of Education
wrapped up its investigation of Princeton University’s sexual
harassment and assault policies. The findings were unsurprising,
though still striking: the government essentially accused the
university of violating federal anti-discrimination law by
extending too much due process to accused
students.

Princeton had been one of the last hold-outs on the standard of
proof in college rape trials. The university required adjudicators
to obtain “clear and convincing” proof that a student was guilty of
sexual assault before convicting him. That’s too tough, said DOE.
As
part of its settlement, Princeton is required to lower its
evidence standard to “a preponderance of the evidence,” which means
adjudicators must convict if they are 50.1 percent persuaded by the
accuser.

Princeton’s old policy was also criticized by DOE for allowing
accused students to appeal decisions, but not accusers. Both this
practice and the evidence standard were revised under Princeton’s
new, DOE-compliant policy.

Both of these are worrying changes for civil libertarians. Using
a low burden of proof in college rape trials is very problematic,
since adjudicators are poorly equipped to determine innocence or
guilt in the first place. They just don’t have the right training.
That’s part of the reason
28 Harvard University law professors have spoken out against
their own campus’s new, similarly unfair policy.

And wile DOE claims that Title IX of the Education Amendment of
1972 requires colleges to use the preponderance of evidence
standard, no court or Congress has ever weighed in on the matter.
As Joe Cohn of the Foundation for Individual Rights in Education
told
InsideHigherEd:

While the Department of Education has the ability to determine
what exactly violates Title IX and potentially pull federal funding
from colleges who are in violation, preponderance of evidence has
not been codified by Congress. The Campus SaVE act does not dictate
what standard a college should use, only requiring that
institutions disclose what that standard is. Joe Cohn, legislation
and policy director at the Foundation for Individual Rights in
Education, said that the department is “on shaky ground when they
insist that preponderance of evidence is the only acceptable
standard of proof under Title IX,” because, legally, it is only the
current administration’s interpretation of the law.

“But it doesn’t matter if their interpretation is off by an inch
or a mile, because who is willing to be a test case on that,” Cohn
said. “With federal funding at stake, institutions are too afraid
to engage and criticize a regulating body. This type of chilling
atmosphere is not helpful to anyone. Nobody is willing to take a
stand.”

On the other side, Laura Dunn, executive director of victims’
advocacy center SurvJustice, hilariously told InsideHigherEd that
“ingrained male privilege” was the only reason for using a lower
evidence standard. Thankfully, the federal government is beating
that tendency out of colleges, she said:

“It’s mostly at these elite schools that we see a real
pushback,” Dunn said. “To put it bluntly, I think it’s arrogance
and ingrained male privilege, but I think they’re starting to get
the message.”

It’s very discouraging to see support for robust due process
written off as a symptom of male privilege. Of course, plenty of
women are concerned that these new policies, far from chipping away
at male privilege, unfairly punish men. (I
interviewed one of them for my August article on criminalizing
campus sex.)

As for Princeton’s former policy of only allowing accused
students to appeal decisions, while that may seem unfair at first
glance, it actually makes sense. Hans Bader—a senior attorney at
the Competitive Enterprise Institute and former Office of Civil
Rights lawyer—pointed out to me that the American criminal justice
system typically permits only defendants to appeal verdicts. This
follows from the principle that accused persons should have every
opportunity to prove they are innocent, but once they are
found innocent, they can’t be retried.

“The Education Department’s claim that it violates Title IX to
allow the accused but not the accuser to appeal is hard to
reconcile with the fact that courts have never construed civil
rights laws to ban that,” Bader told Reason.

Unfortunately, no legal authority will ever have the chance to
examine DOE’s very due-process-unfriendly interpretation of the
law, because colleges are either too afraid of standing up to the
feds, or have an ever-weakening commitment to civil libertarian
values. Or both.