One year ago last month, the U.S. Department of Education’s Office for Civil Rights (OCR) released a dear colleague letter laying out the new measures colleges and universities receiving federal funding must take to prevent and deal with sexual harassment claims. Though well-intentioned, key provisions of the letter gravely threaten fundamental rights to fair procedure and free speech on campuses nationwide, and reflect similar trends in other disciplinary areas closer to home.
Most problematic is the mandated lowering of the standard of evidence colleges must use in administrative or judicial hearings in harassment cases. Instead of a “clear and convincing evidence” standard, which requires that it be “highly probable or reasonably certain that the sexual harassment or violence occurred”—that is, much more likely to have occurred than not—colleges must rule on sexual harassment cases using a “preponderance of the evidence” standard, which asks only that “it is more likely than not that sexual harassment or violence occurred.” To clarify the legal jargon, “clear and convincing evidence” is widely interpreted as reflecting anywhere from 75 to 85 percent certainty, less than the exacting “beyond a reasonable doubt.” Meanwhile, “preponderance of the evidence” only requires one to be at least about 51 percent sure of guilt—well within a substantial range of uncertainty. At stake for institutions that use a higher standard are discrimination lawsuits and the loss of federal funding due to Title IX violations, which the OCR is responsible for enforcing.
Much more concerning, however, is the impact on students facing sexual harassment charges, who should be presumed innocent until guilt is clearly demonstrated. It’s worth considering the consequences for sexual harassment proceedings. The accused face, at the very least, permanent marks on their academic record and ruined reputations; at worst, blacklisting from future employment, expulsion, and criminal charges. According to a survey conducted by the Foundation for Individual Rights in Education, 39 of the top 100 schools—including the University of Chicago—have already lowered their evidentiary standards in accordance with these new guidelines.
There is no doubt that sexual assault and harassment are vicious offenses that should be duly investigated and punished by colleges and universities everywhere. But procedure shouldn’t function in a way that almost begs the question the investigation is meant to answer. It tends to be that the most despicable offenses provoke passionate feelings of contempt, facilitating a demagogic outcry for justice that in turn fuels a hasty jump to conclusions. For this reason, the more serious an allegation is, the more critical high evidentiary standards are to ensuring an equitable outcome.
Free campus expression is also undermined by the updated OCR standards. The new OCR policies foster the ambiguity between genuine harassment and protected speech by not clearly emphasizing the difference between genuine harassment, and language that might cause offense but that would not meet the threshold for harassment. A nationwide habit of vaguely worded harassment policies constantly plagues campus speech codes. For instance, the harassment policy at California State University classifies “sexual innuendoes made at inappropriate times, perhaps in the guise of humor” as a violation of its sexual harassment policy. Alabama State University’s restriction on “behavior that causes discomfort, embarrassment, or emotional distress” is similarly broad. When discomfort exists between two individuals, how are administrators to determine what jokes or comments are sufficiently “embarrassing” or inappropriately timed, and by what standard? Terms like “hostile” or “offensive environment” are ubiquitous in campus policy literature, but these words can take on different meanings in a disciplinary context. When power is vested in administrators to punish actions or speech on such loosely defined standards, they can dampen free campus expression.
At our own university, the clarity problem can be seen in the guidelines of our bias response team. They define a bias incident as “an action in which a person is made aware that her status is offensive to another,” but the behavior does “not rise to the level of a crime.” It’s unclear from this language precisely what makes otherwise lawful behavior so severely offensive that it merits disciplinary action, and where that line is drawn. Yet even when reviewing offenses not subject to legal response, there is no reason not to give notice of how “bias” is identified and what sorts of punishments those who express “bias” would be subject to. This sort of vagueness—especially when it fails to clearly accommodate protected speech and expression—might silence legitimate debate on controversial topics of public concern among students with unpopular convictions. And even if we consider comments outside the realm of serious debate—such as with crude, immature joking among friends— I believe that there is no particular obligation not to offend. As our campus manual states, part of what truly free speech means is that we don’t shield “people from ideas that they may find unwelcome, disagreeable, or even offensive.” There might be some legitimate role for bias response in mediating conflicts, but we must not allow it to be used as a tool to punish students for holding and expressing unorthodox views.
As of today, the OCR has not responded to criticism of its guidelines from civil libertarians, or organizations like the Foundation for Individual Rights in Education and the American Association of University Professors. If we could judge only by intentions, the fact that sexual harassment policy is beginning to be taken more seriously is a good sign. And no one questions that university administrators have an obligation to investigate and punish incidents of sexual harassment. But they have no less of an obligation to ensure that students accused of harassment or assault are fairly and convincingly shown to have violated clear policies, and that the free and open exchange of ideas is not chilled by excessively enigmatic policy. There is clearly a balance to be found between the rights of victims and the accused, but protecting the former should not entail giving short-shrift to the latter.
Bryant Jackson-Green is a third-year in the College majoring in ISHUM and political science.