When charges are treated like verdicts

Fighting the good fight

[Reprinted from Issues & Views April 21, 2003]

As regards civil liberties, by now, there are no surprises that come from American college campuses. Speech codes, "free speech zones," and a general suppression of "incorrect" views on particular topics make up the normal environment surrounding most college students. And, since most colleges have long been subsumed by liberal ideology, one knows to expect scant regard for individual rights. But some policies are real corkers.

During the heady days of feminist bluster, and until this year, Harvard University instituted a policy where students (let's face it, women) could bring charges of assault or rape against other students (let's face it, men) and need have no corroborating evidence whatsoever. The accused man was immediately subjected to a date-rape or assault investigation. In closed sessions, his fate was decided, and he was denied the right to defend himself. He could never confront his accuser or directly hear her testimony.

While the Foundation for Individual Rights in Education (FIRE) joined with others to oppose Harvard's high-handed policy, FIRE's president, Charles Alan Kors, made it clear that Harvard was by no means the only university to run the equivalent of "Star Chambers":

There is virtually no place left in the United States where kangaroo courts and Star Chambers are the rule rather than the exception--except on college and university campuses. Due process, that is to say, fundamental fairness, is diminished in cases involving the most serious charges. In fact, in civilized societies, the more serious the charges, the greater the procedural safeguards become. Sadly, hundreds of colleges and universities have established special tribunals, with fewer protections and presumptions of innocence, to hear cases of sexual misconduct. Charges are treated like verdicts.

Kors' claims are supported by a host of other civil libertarians, including Nina Bernstein, who, in 1996, in a series of articles for the New York Times, wrote about cases on campus that "vanished into a separate judicial world so secret that many Americans are unaware that it operates behind closed doors at most of the nation's 3,600 colleges and universities."

Under pressure to reform the university's policies, last year Harvard's administration began the process of implementing fairer procedures. Needless to say, these attempts have met with a firestorm of controversy and resistance from the oldline feminist camp. A student group, the Coalition Against Sexual Violence, defiantly claims that any new rules that deny that a woman's word alone is enough to sustain a rape charge should be deemed "sexual discrimination." Harvey Silverglate, FIRE's executive director, writes about the new rules:

As the controversy demonstrates, it is tremendously difficult for colleges to take even a small step toward implementing fairer procedures. . . .

In the past, Harvard began a full-scale date-rape investigation whenever it received an allegation from one student that sexual activity with another student had not been fully consensual. Under the new rule, a preliminary screening must be conducted before full proceedings can begin. If a student initiates a complaint, she or he will be asked to submit a list of possible witnesses, or an account of the evidence that the complainant believes the board will be able to obtain. The board will then conduct a preliminary screening to determine whether the complaint establishes something more than a pure "he said/she said" credibility contest.

While modest, the change is important because it protects students from the initiation of disciplinary proceedings on the basis of groundless and unprovable accusations.

To stave off the implementation of the new policy, the Coalition Against Sexual Violence engaged a lawyer to protest to the Office for Civil Rights of the U.S. Department of Education. Invoking Title IX, the law that requires schools and colleges that receive federal funds from discriminating on the basis of sex, the complaint claimed that the new rules "placed unfair burdens" on sexual assault victims.

On April 1, 2003, the Office for Civil Rights rendered the results of its investigation. In a letter addressed to Harvard's president Lawrence Summers, the OCR informed: "Because OCR's investigation did not find sufficient evidence to support a violation of Title IX, we are closing the case as of the date of this letter." Further, the letter stated:

The revisions at issue here, as described in the College's most recent publications and as explained to staff and students, do not unduly interfere with a student complainant's access to a prompt and equitable process for resolving complaints of sexual assault.

Based on the above, OCR did not find sufficient evidence to establish that the changes to the grievance procedures, as explained by College staff, deprive students of access to a process providing a prompt and equitable resolution of their complaints.

Calling the OCR's decision a "victory for fundamental fairness," FIRE's Silverglate observes, "This is a very important first step. OCR's stamp of approval will open the door for greater due process at colleges across the country. It sends precisely the right message. More due process protections serve the rights of both the victims and the falsely accused. Rights are not a zero-sum game. They belong to everyone."

Learn more about the status of cases currently represented by the Foundation for Individual Rights in Education (FIRE), an organization dedicated to preserving liberty on college campuses.

Of Interest: Transcript of conference held on April 17, 2003, sponsored by the Chronicle of Higher Education, in which FIRE's President Alan Charles Kors and CEO Thor Halvorssen participated. Conference topic: How should colleges respond when the unpopular views of their professors create controversy? What does the De Genova case illustrate about the state of academic freedom?

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