The Office of Civil Rights’ mandated procedures for investigating sexual assault are tilted heavily against the accused party... [and] judge the student according to a 50.00001 percent preponderance of evidence standard, an approach that mocks even the pretense of due process....What I did not understand until my recent conversation was how much our campus sexual-harassment environment is the product of lawsuits rather than legislation. It is true that the OCR sees enforcement of these codes as a kind of civil rights campaign, but the actual mandate they are enforcing was largely produced by court cases where students sued the schools for having inadequately protected them. The courts accepted that the schools were liable, and said that they would need to have clear procedures in place to handle these cases. Then, when schools created such procedures, time and again they were found liable anyway, forcing the procedures to become even more tilted.
It is remarkable, then, that one such accused student at the University of Virginia was exonerated of the charges brought against him. Unfortunately, what happened next was unsurprising.
The accuser hired an outside attorney–none other than controversial victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of Civil Rights. Murphy’s argument, as expressed to c-ville.com, comes close to saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,” she told the newspaper. “When her accusations are deemed credible, and his denials are not described with the same glowing terminology, she wins.” But under the UVA system, the investigators (serving as the equivalent of a grand jury) have the authority to deem an accuser’s claims “credible.” For the OCR even to consider such an absurd claim would be highly problematic.
The most recent comprehensive guidance from OCR is here. Note that the letter is addressed to the colleges, and is all about what standards the colleges have to adhere to in order to avoid liability. They cannot leave investigations to the police, for example, nor defer to the courts. They cannot defer on issues that happened at private homes, or indeed anywhere off campus. They must take immediate action of some kind on any complaint whatsoever. They are required -- by SCOTUS precedent -- to adhere to the preponderance standard. If they do not do these things, they will be liable in court.
This current complaint is thus one in a long series of lawsuits that have pushed the standards a little further by seeking judgment against the school in spite of their adherence to established procedures. Such lawsuits have succeeded fairly often -- that's how we got here. The next OCR letter may well instruct the schools that, based on the outcome of this case, if they want to be safe from a liability judgment in court they must regard the accusation in itself as meeting the preponderance of evidence standard.
What troubles me about this is that we've built a rather terrifying system in such an ad hoc manner. This is one occasion where some legislation would actually be welcome. It would be wise to take this cobbled-together monstrosity and replace it with a carefully constructed, fully-considered law that included adequate protections for both parties to the conflict.
Of course, for that to happen we would have to have a legislature that was capable of producing a fully-considered law on any subject at all, let alone one so fraught as this. Judging from the recent Presidential and Congressional campaigns, it is impossible to imagine that our political system is capable of that.