College is often considered the best years of a person’s life, but sadly college life has its own dark side. One example, gaining national attention (read the White House statement here), is the issue of rape and sexual assault on college campuses. However, there is also a related but less discussed trend occurring: the reshaping of student disciplinary proceedings. This article is about the damage being done by people with the best of intentions.
Though commonly discussed as problems to be solved, rape and sexual assault are crimes. Even so, very few cases occurring on college campuses enter the legal system, and are instead heard under schools’ disciplinary procedures. However, these proceedings lack many protections that would otherwise be afforded to those criminally accused, including a presumption of innocence. The result is an opaque process that can destroy the lives of the innocent and guilty alike.
Changes to higher education disciplinary hearings have been dramatic. At government urging, many schools have hired one individual to be responsible for investigating, prosecuting, judging, and hearing appeals in sexual assault cases, while lowering the standard of proof from “clear and convincing evidence” to a “preponderance of the evidence.” This requires only a 51% likelihood of guilt, allowing punishment in cases where the evidence is far from conclusive. The process risks biased decision-making, and removes impartial judges and outside review. When these policies were implemented at Harvard, twenty-eight professors signed a letter protesting the changes as lacking “the most basic elements of fairness and due process.” There have also been several high profile cases of students being accused and punished, only to be exonerated after independent investigations by journalists (RollingStone) or the courts (Slate) debunk the accusation. Tellingly, both cases occurred at schools looking to “get tough” on sexual assault following criticism of their existing policies.
The lower standards for school disciplinary hearings are justified by claiming they are civil proceedings, for which the most serious punishment is “merely” expulsion. However, many students expelled for sexual assault charges struggle to enroll in new schools, sometimes being forced to abandon college entirely due to the stigma attached with their expulsion. Other hurdles include transferring credits, financial considerations, delayed graduation, and being forced to leave behind their friends. All of this for students who, due to the lax standards and absence of procedural protections, may not even have committed the offense.
Even before hearings begin, accused students may face draconian restrictions. In a well-meaning attempt to shield a potential victim from her alleged assailant, an accused student may be prevented from living on campus, taking the same classes as the accuser, or even approaching the accused on campus. Yet unlike with a criminal indictment, where the evidence has met a threshold for charges, a student can face restrictions for months while the school investigates, even if the accusation is ultimately found meritless.
This is not to suggest that schools’ existing policies are sufficient, or that sexual assault is not a serious issue with real victims. The point is that the issue is complex. Sexual norms are subtle, the act itself often occurs in private, and critical questions like when consent is valid continue to be debated by lawyers, politicians, and the public at large. Ultimately, a disciplinary proceeding that affords the accused a fair hearing protects both the victim and the accused. Thus schools should carefully consider any changes to their disciplinary hearings, lest one injustice merely creates another.
A particularly good article on the issue and the underlying literature can be found here.