Competitive Enterprise Institute | 1899 L ST NW Floor 12, Washington, DC 20036 | Phone: 202-331-1010 | Fax: 202-331-0640
The Washington Post had a sad story  on May 14 about a school teacher falsely accused of sexual misconduct by a student with a vendetta against him and a history of bullying. A jury acquitted  Fairfax teacher Sean Lanigan after just 47 minutes of deliberations, expressing amazement at the weakness of the charges against him. But he still doesn’t have his old job back.
If the U.S. Department of Education’s Office for Civil Rights has its way, more teachers like him will end up being fired even if they are acquitted by a jury of any wrongdoing, and may very well be innocent. It sent a letter to school officials on April 4 ordering them to lower the burden of proof  they use when determining whether students or staff are guilty of sexual harassment or sexual assault. According to the Department of Education’s demands, schools must find people guilty if there is a mere 51% chance that they are guilty – a so-called preponderance of the evidence standard. So if an accused is found not guilty under a higher burden of proof – like the “beyond a reasonable doubt” standard that applies in criminal cases – the accused will still be subject to disciplinary action under the lower burden of proof dictated by the Education Department.
Many colleges have historically required "clear and convincing" evidence of guilt. This sensible standard requires less absolute certainty about guilt than the "beyond a reasonable doubt" standard used in criminal prosecutions, but more certainty than the mere 51% chance (preponderance) standard demanded by the Education Department. But under pressure from the Education Department, colleges across the country have now abandoned this safeguard against false accusations.
Many colleges , like Yale, Stanford, Brandeis, the University of Massachusetts, and the University of Virginia  have now changed the burden of proof in their disciplinary proceedings to comply with the Education Department’s demands, largely eliminating the presumption of innocence. The Education Department investigated these schools at the request of  Wendy Murphy, a lawyer who championed the failed prosecution of the innocent Duke Lacrosse players (making a litany of false claims  against them and their lawyers), even though their innocence was later conceded by prosecutors and North Carolina’s attorney general. (The woman who falsely accused the Duke Lacrosse players was never punished for her false allegation, despite her prior criminal record and history of false allegations , and recently stabbed to death  her live-in boyfriend). Murphy claims that she has “never, ever” encountered “a false rape claim.”
But as another lawyer, Wendy Kaminer, noted  in the Washington Post on May 12, “not all accusations of sexual misconduct are accurate or true, and the truth can be especially hard to discern in ‘he said, she said’ cases.” Thus, “the Education Department’s new policies increase the risk that students wrongly accused of misconduct will be found guilty, suspended or expelled, and tarred as stalkers or rapists.”
I earlier explained  why the Education Department’s position was not supported by the court rulings it pretended to rely on, and actually conflicted with appeals court rulings  making clear that employers and schools are not liable for sexual harassment under Title IX and Title VII merely because they give the accused a strong presumption of innocence.
Now, the Daily Caller reports  that the Foundation for Individual Rights in Education (FIRE) sent the Education Department a letter  on May 5 protesting its attempt to water down due-process rights in campus disciplinary proceedings.
In addition to trying to lower the burden of proof, the Education Department is attempting to deprive accused students and faculty of the opportunity to cross-examine their accusers: “students accused of harassment should not be allowed to confront (or directly question)  their accusers, according to OCR, because cross-examination of a complainant ‘may be traumatic or intimidating.’” As OCR puts it , “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing.” This is perverse, since the preeminent legal expert on evidence, Wigmore, called  cross-examination “the most powerful engine  for the discovery of truth ever devised by man." In sexual harassment cases brought in court, the defendant invariably has the opportunity to cross-examine the accuser, because courts recognize that cross-examination is useful in exposing false allegations.
The Education Department argues that colleges must use a 51%-chance standard in their internal disciplinary proceedings over harassment -- rather than requiring clear and convincing evidence -- because that’s the standard that courts use in most lawsuits, including civil rights cases. But that doesn’t make sense, because the issue being decided in college disciplinary proceedings (whether harassment occurred and the accused is guilty) is different from the issue being decided in court when a college is sued for harassment (whether the college’s response to harassment was unreasonable or “deliberately indifferent”).
The Education Department is glossing over the undisputed fact that the mere existence of harassment by students isn’t enough for liability in a lawsuit against a college. More is required. The school’s own actions in response to the harassment must be culpably negligent or indifferent. As the Education Department itself admitted in its 1997 “Sexual Harassment Guidance ,” “Title IX does not make a school responsible for the actions of harassing students, but rather for its own discrimination in failing to remedy it once the school has notice.” (See U.S. Department of Education, Office for Civil Rights, Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 62 Fed. Reg. 12034, 12040 (March 13, 1997)).
So to violate Title IX, an institution’s own actions must be proven culpable under a “preponderance” standard — not the mere occurrence of harassment. And whether harassment occurred and whether the school was unreasonable in how it responded to it are two different issues. (For example, in Knabe v. Boury Corp.  (1997), a federal appeals court dismissed  a lawsuit against an employer that refused to discipline an accused employee because of the lack of corroboration for the accuser’s allegations – even though it assumed that the accuser’s allegations were accurate and truthful – because the employer investigated and in good faith concluded that the accused was not clearly guilty based on the lack of strong proof of guilt. The employer could not be held liable, because its response was “reasonably calculated ” to address harassment. Similarly, in Doe v. Dallas Independent School District  (2000), another federal appeals court ruled than a school did not violate Title IX, and was not "deliberately indifferent" to harassment, merely because it reached the wrong conclusion about whether the accused was guilty. In Adler v. Wal-Mart  (1998), a different appeals court ruled that an employer was not liable for sexual harassment where it failed to discipline one of the harassers, since his guilt was not clear at the time, and holding it liable for its reasonable but erroneous belief that he was not guilty would callously disregard his due process rights. In short, as yet another appeals court put it in the case of Harris v. L & L Wings  (1997), "a good faith investigation of alleged harassment may satisfy the ‘prompt and adequate’ response standard, even if the investigation turns up no evidence of harassment. . . . Such an employer may avoid liability even if a jury later concludes that in fact harassment occurred.'”)
What standard of proof is “reasonable” for a school to apply in disciplinary cases? Both legal tradition and constitutional due-process rulings suggest that it is perfectly reasonable to apply a higher burden of proof than 51% -- like “clear and convincing evidence” – when determining the guilt of individuals, rather than the monetary liability of an institution.
First, as FIRE notes , the Supreme Court itself has used a higher “‘clear, unequivocal and convincing' standard of proof” even outside the context of criminal prosecutions, when necessary to promote the due process rights of individuals, and has blessed the use of this higher standard “in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant," where the damage to “reputation” resulting from an erroneous  finding of guilt is particularly severe (as it surely is in sexual harassment and rape cases).
Second, it has long been customary to use a “clear and convincing” standard of proof in disciplinary cases in general, including sexual harassment and other forms of wrongdoing that can lead to civil litigation. This standard has long been used by a wide variety of decision-makers ranging from college officials and labor arbitrators to state licensing boards and bar disciplinary proceedings.
Disclosure: I once worked as an attorney in the Education Department's Office for Civil Rights.