September 2011
For a glimpse into the treacherous
territory of sexual relationships on college campuses, consider the case of
Caleb Warner.
On Jan. 27, 2010, Mr. Warner learned
he was accused of sexual assault by another student at the University of North
Dakota. Mr. Warner insisted that the episode, which occurred the month prior,
was entirely consensual. No matter to the university: He was charged with
violating the student code and suspended for three years. Three months later,
state police lodged criminal charges against his accuser for filing a false
police report. A warrant for her arrest remains outstanding.
Among several reasons the police gave
for crediting Mr. Warner’s claim of innocence was evidence of a text message
sent to him by the woman indicating that she wanted to have intercourse with
him. This invitation, combined with other evidence that police believe indicates
her untruthfulness, has obvious implications for her charge of rape.
Nevertheless, university officials
have refused to allow Mr. Warner a re-hearing—much less a reversal of their
guilty verdict. When the Foundation for Individual Rights in Education (FIRE), a
civil liberties group of which I am board chairman, wrote to University
President Robert O. Kelley to protest, the school’s counsel, Julie Ann Evans,
responded. She wrote that the university didn’t believe that the fact that Mr.
Warner’s accuser was charged with lying to police, and has not answered her
arrest warrant, represented "substantial new information." In any event, she
argued, the campus proceeding "was not a legal process but an educational one."
Six weeks before FIRE received this
letter, Russlynn Ali, assistant secretary for the Office for Civil Rights in the
Department of Education, sent her own letter to every college and university in
the country that accepts federal money (virtually all of them). In it, she
essentially ordered them to scrap fundamental fairness in campus disciplinary
procedures for adjudicating claims of sexual assault or harassment.
Ms. Ali’s April 4 letter states that
"in order for a school’s grievance procedures to be consistent with the
standards in Title IX [which prohibit discrimination on the basis of sex in any
educational institution receiving federal funds], the school must use a
preponderance of the evidence standard (i.e., it is more likely than not that
sexual harassment or violence occurred)." This institutionalizes a low standard
previously eschewed by most of the nation’s top schools. It also sends the
message that results—not facts—matter most. Such a standard would never hold up
in a criminal trial.
Following this outrageous diktat,
Cornell University lowered its evidentiary burden in sexual assault cases. Now,
determining whether an incident constitutes sexual violence is based on the
"preponderance of the evidence" standard, instead of the school’s prior "clear
and convincing evidence" test. Stanford followed suit—in the middle of one
student’s sexual misconduct hearing. He was promptly found guilty and suspended
for two years.
When Yale administrators received the
government’s letter, the university was under federal investigation for
permitting gender discrimination on campus. The next month, on May 17, Yale
announced that it would institute a five-year suspension of a fraternity that
had engaged in a puerile but harmless initiation. Parading around campus,
blindfolded pledges were told to shout tasteless slogans like "No means yes, yes
means anal."
The university deemed this a
sufficiently serious species of gender-based discrimination to justify official
censorship. This, despite its "paramount obligation"—Yale’s words—to uphold
freedom of expression. And Yale, too, lowered its previous, higher evidentiary
standard in sexual assault cases to the bottom rung.
Codes banning "offensive" speech in
the name of protecting the sensibilities of what are commonly designated
historically disadvantaged groups—and the campus kangaroo courts that enforce
them—have long threatened free expression and academic freedom. While real-world
courts have invalidated many of these codes, the federal government has now put
its thumb decisively on the scale against fairness on issues of sexual
harassment and assault.
Caleb Warner now goes without a
diploma and carries with him the stigma of a sexual predator. Unfortunately, the
government’s policy ensures that his will not be a unique case.
Mr. Silverglate, a lawyer, is the
author of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter
Books, 2009). He is also the chairman of the board of directors of the
Foundation for Individual Rights in Education.
Wall Street Journal, July 15, 2011.
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