Due process dead on campus
By Nico Perrino
But that is about to change.
A recent “Dear Colleague” letter from the Office for Civil Rights within the U.S. Department of Education will most likely assure there will be more sexual assault convictions, at least coming from university judicial boards.
The letter, sent to all public institutions of higher education, mandates that universities, which receive federal funding, adopt the “preponderance of evidence” standard when investigating reports of rape or sexual misconduct. If a university does not adopt this standard, it risks losing all of its federal funding.
While it might seem with these actions the Department of Education should be commended for tackling such an issue, it has, in fact, decided to use a regulatory wrecking ball when perhaps an exacting scalpel needed to be applied.
By forcing universities to use the preponderance of the evidence standard — the lowest standard of proof — the Department of Education has guaranteed more innocent students will be found guilty, something that would not occur if it had mandated a more exacting standard of evidence.
In an Op-Ed in the Wall Street Journal, Harvey Silverglate reported on one of the first public victims since the mandatory institution of this standard:
On February 19, 2010, University of North Dakota student Caleb Warner was found guilty of “Violations of Criminal or Civil Laws, Sexual Assault, and Interference [with members of the university community]” by a campus judicial board.
The conviction stems from a December 13, 2009, incident in which Warner had what he claimed was consensual sex with a fellow student.
Despite Warner’s claim, sometime before February 9, 2010, the student reported to campus officials and the Grand Forks, N.D., police department Warner had raped her.
While the university swiftly brought a guilty verdict to Warner, banning him from stepping foot on UND grounds or any other public institution of higher education in North Dakota for three years, the Grand Forks Police Department declined to prosecute Warner.
Instead, the police department applied for a warrant for his accuser’s arrest, a request that a judge later granted.
According to Grand Forks authorities, Warner’s accuser lied to investigators about the incident, a class A misdemeanor.
The accuser has since fled to California, according to Warner, and for this type of warrant, extradition is unlikely.
When Warner’s attorney and the Foundation for Individual Rights in Education asked for a rehearing because of the GFPD’s findings, which includes a text message from the accuser indicating she wanted to have sex with Warner, the university denied it.
According to UND counsel, when UND conducted its hearing they used the same evidence the police and prosecutor used to charge the accuser with lying to law enforcement authorities.
Because Warner was found guilty in the university judicial system, he has since had to put his education on hold and carry with him the stigma of a rapist.
While he may be the first public victim since the OCR required its new evidentiary standard, you can be sure he won’t be the last.
By forgoing the “clear and convincing” evidentiary standard that most top colleges usually applied to allegations of sexual assault, the OCR has also forgone fundamental fairness and committed its own acts of metaphorical violence against student rights, against due process and against the founding principles of our nation.
They have determined college students need fewer protections than the normal citizen and turned campus judicial bodies into Star Chambers where fair hearings are already hard to come by in front of mostly volunteer juries.
If we want to avoid more situations like Caleb Warner’s, the OCR should rethink its mandate and find another, more principled way to prosecute sexual assault cases.
The OCR must understand that making unwitting victims out of men like Caleb Warner does justice for no one.
In attempting to fix the problem of sexual violence and misconduct, the OCR victimizes another class of people. Trading one set of victims for another does service to no one, especially when one of those victims is the Constitution of the United States.