The April 4th Directive - the Death of Due Process for Male Students

*My video has kindly been linked to by Stop Abusive and Violent Environments here (and edited and embedded in their webpage on the right). Thank you to the team at SAVE!*

The greatest threat to the civil rights of male students in higher education is the April 4^th Directive, sometimes called the “Dear Colleague” letter, issued in 2011 by the federal Department of Education's Office on Civil Rights, which I will abbreviate from here on as the OCR. In part 1 of this subseries on the April 4^th directive, I’m going to tell you what parts of the directive are bad for male students, and discuss its reception.

It’s important to remember that there are many policies and customs within academia that serve to disenfranchise and punish male students for the crime of being born male. I’ll be discussing them in more depth in the future.  But this April 4^th Directive - the crown jewel of anti-male policy in higher education – is so indifferent to the well-being of male students, and so broad in its influence, that it deserves to be addressed on in depth and on its own.

In theory, the intention of the directive is to compel academic administrations to render judgments in allegations of sexual misconduct on campus. In practice, it does so in a way that cuts deeply into the rights of the accused, who are almost exclusively male. The most egregious part of this Directive is that it requires all colleges and universities which receive federal funding (in other words, almost all of them) to adopt the Preponderance of Evidence standard when determining whether a male student accused of sexual assault is guilty.

Page 10 of the directive says: “In addressing complaints filed with OCR under Title IX, OCR reviews a school’s procedures to determine whether the school is using a preponderance of the evidence standard to evaluate complaint.” The next page reads “In order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard...the “clear and convincing” standard…currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.”

What is the preponderance standard? To put it in context, the highest standard of proof would be the “Beyond a reasonable doubt” standard, or ~95% certainty that the alleged crime occurred - the standard normally used in criminal trials. A lower standard would be the “clear and convincing” standard: ~80% certain that a crime occurred, or “it is highly probable or reasonably certain that a crime occurred.” The lowest standard before completely reversing the presumption of innocence is the “preponderance of evidence” standard, or 50.01% certainty that a crime occurred. In other words, the toss of a coin. This is the standard used to determine guilt for misdemeanors like traffic fines and parking tickets, and now this incredibly low standard is used to determine whether male students are guilty of felony offenses. It is my belief, and the belief of many others, that this demand placed upon colleges and universities by the OCR is unethical. Unethical and unconscionable, on the grounds that it such shows extreme disregard for the rights of the accused, and demonstrates either an ignorance or an extreme indifference to the suffering experienced by those falsely accused of sexual assault.

Teri Stoddard is the program director for Stop Abusive andViolent Environments, or SAVE, an organization that speaks on behalf of the falsely accused. On their website she states: “Campus procedures are not criminal ones, so the accused do not enjoy Constitutional protections. Now, jilted lovers can ruin the lives of teachers and students with false allegations of rape.” And she’s right. Trials conducted in academia are not like criminal trials conducted with lawyers, judges, rules of evidence, and thorough means of documentation, like court recorders. In academia, the accused are not afforded the right to cross-examine their accusers before judgments are entered against them, as they would in a trial. Page 12 of the directive states: “OCR strongly discourages schools from allowing the parties to question or cross-examine each other during the hearing.”

Hans Bader is a former attorney for the Department of Education. In his article “Why Cross-Examination Rights Matter inCampus Sexual Harassment Cases under Title IX,” he writes of the OCR’s statement forbidding cross-examination during the hearings, “This is perverse, since the subjective nature of the legal definition of harassment means that there is no category of cases in which cross-examination is more useful or essential to ensure due process.

“Sexual harassment cases commonly turn not only on such credibility disputes, but also on the complainant’s alleged subjective emotional state, which makes cross-examination far more essential than in the ordinary campus discipline case. (By contrast, other kinds of disciplinary cases often turn solely on objective events that can be verified without any cross-examination of the accusing witness).

“Even if it did not violate the Constitution, the Department of Education’s assault on cross-examination would still be unjustified, since cross-examination has justly been called "the most powerful engine for the discovery of truth ever devised.” 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."

Under this directive, students accused of sexual misconduct are also no longer given due process protections from double jeopardy, a false accuser may try her case, along with all its other attendant violations of due process, a second, and even a third time, until a judgment is entered against the man falsely accused. Page 12 of the directive states, “OCR also recommends that schools provide an appeals process. If a school provides for appeal of the findings or remedy, it must do so for both parties.”

An article was published in the Chronicle for Higher Education in June 2011, the title of which reads “In making campuses safer forwomen, a travesty of justice for men.” The author, Professor Christina Hoff Sommers, informs us, “Marching under the banner of Title IX and freed of high standards of proof, campus disciplinary committees, once relatively weak and feckless, will be transformed into powerful instruments of gender justice. At least, that is the fantasy. But here is the reality: Campus disciplinary committees—often a casual mix of professors, students, and an assistant dean or two—are well suited to resolving cases involving purported plagiarism and cheating, and violations of college rules on drugs and alcohol. But no one considers them prepared to adjudicate murder, arson, kidnapping cases, or criminal assault. They lack the training and the resources to investigate and adjudicate felonies."

Sexual assault, and false accusations of sexual assault, are among the most nebulous crimes in existence. Most cases are he simply said/she said, with no physical evidence, and where we cannot tell if either party is embellishing, lying, telling the whole truth, or hiding half of it. The definitions of what constitutes rape change from person to person, making one person’s rape another’s false accusation. They are also among of the most politicized crimes in our jurisprudence. In other words, sexual assault, and false accusations of the same, are crimes that academia should not be adjudicating if they can help it, and should instead deferring to law enforcement, who are more properly trained than university administrations.

Unfortunately, that’s where the second most harmful part of the April 4^th Directive both ties and forces the hands of academic officials. Previously, colleges and universities tended to conduct mediation and let the police handle weighty felony decisions. No longer. Page 3 of the directive reads, “The school’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the school of its independent Title IX obligation to investigate the conduct.”

So what happens when police, investigators, and courts use a higher standard of evidence than academia, when their investigations are mostly conducted separately, and when the academy feels obligated to render judgments on felony offenses with bureaucrats whose areas of expertise is presiding over cases of plagiarism and underage drinking? At times, they will come to completely different conclusions, and one of them, usually the academy, will end up looking foolish. An article in the online publication Townhall titled “The Rape of Caleb Warner” reads:

“At the University of North Dakota (UND) the unthinkable has become a reality. A student has been found guilty of sexual assault despite the fact that local police refused to charge him with a crime – any crime. In fact, the police have charged his accuser with lying about the very incident that led to his campus conviction. And the punishment is not insignificant. Former student Caleb Warner has been banned by UND from setting foot on any North Dakota public campus for three years. Meanwhile, his accuser has been wanted by the Sheriff's Department on the charge of making a false report.

“The Foundation for Individual Rights in Education, or FIRE, has been the national leader of the opposition to a federal Department of Education mandate, which is forcing more universities to adopt the preponderance of evidence standard in rape cases. Under this mandate, universities cannot receive federal funding, including financial aid for students, unless they adopt the lower standard of proof in rape cases. FIRE predicted it would result in more wrongful convictions. And FIRE was right.”

FIRE is an organization dedicated to protecting the rights of free speech and due process in higher education. Since it primarily exists to protect students from abuses of academic authority, it is in the best interest of students that they become familiar with the organization and its website. More on FIRE later.

The next interesting part of the directive is on page 5: “In cases involving potential criminal conduct, school personnel must determine, consistent with State and local law, whether appropriate law enforcement or other authorities should be notified.”

The accuser doesn’t have to make a formal claim to law enforcement at all. And the implications are significant. It is entirely possible that a male student may be falsely accused and banned from his school without any pretense of due process, without his accuser ever having brought her claim law enforcement, where he might be exonerated. What would have happened if Caleb Warner’s false accuser had never made a formal claim, and had instead relied solely her hangmen in Judicial Affairs? Caleb Warner would never have been exonerated, either in his local community or in the national press, as he is now, and the full weight of that accusation would hang over his head for the rest of his life.

The fifth amendment right of citizens to  not falsely incriminate themselves, which includes their  right to remain silent, and to not testify against themselves, is an often overlooked and misunderstood element of our jurisprudence. The reason for its existence is that unscrupulous and/or politically-motivated prosecutors and police can cherry-pick, twist, embellish, and flat-out lie about what the accused says. Consider this lecture on exercising your right to remain silent by James Duane, former defense attorney and professor at Regent Law School.

http://www.youtube.com/watch?v=i8z7NC5sgik

As we can see, it is important that those accused are aware of their right not to falsely incriminate themselves, and to instead remain silent. Consider the implications if a falsely accused student had made similar statement during a university investigation. If the school conducts its investigation before the police conduct theirs, the falsely accused student, while he conversing with academic officials in a supposedly private interview, may not understand, while he is lulled into a false sense of security, that everything he says can be twisted into lies and used against him in court.

The Foundation for Individual Rights in Education says, in its “Guide to Due Process and Fair Procedure on Campus,” "If you have both a university disciplinary hearing and a criminal trial pending, you will almost always want to get your disciplinary hearing postponed until after the criminal matter is settled.  Holding the disciplinary hearing before the criminal trial can be very dangerous, because what you say at the campus hearing-where you have far fewer protections than in a court of law - can be used against you in the criminal case."

But on page 10, the April 4^th directive states, “Schools should not wait for the conclusion of a criminal investigation or criminal proceeding to begin their own Title IX investigation and, if needed, must take immediate steps to protect the student in the educational setting. For example, a school should not delay conducting its own investigation or taking steps to protect the complainant because it wants to see whether the alleged perpetrator will be found guilty of a crime.”

To their credit, while police may sometimes resort to unscrupulous tactics, they often have the decency to inform the accused upfront that anything they say can be used against them in a criminal trial, and that they have the right to remain silent to avoid falsely incriminating themselves. Academia, unfortunately, does not yet possess this integrity.

Other parts of the directive are not unethical per se, but are problematic in that they ignore the suffering of the falsely accused, and fail to advise academia on how to best protect them. On page 5 the directive says, “The school also should tell the complainant that Title IX prohibits retaliation, and that school officials will not only take steps to prevent retaliation but also take strong responsive action if it occurs.” Nowhere in the 19 pages of this directive does it mention protecting the accused from retaliation or from those who create a hostile environment toward them. The article in the Chronicle of Higher Education reads:

“In 2006 three Duke University lacrosse players were falsely accused of gang rape. They endured a nightmarish, yearlong ordeal in which abundant evidence of their innocence seemed not to matter at all—not to the police, not to the prosecutor, not to Duke's faculty or president. Protesters gathered outside the lacrosse house carrying a banner with the word CASTRATE, banging pots and pans, and chanting "Confess, confess!" Student vigilantes plastered the campus with "Wanted" posters bearing the players' photographs. Duke professors took out an ad in a local newspaper in support of the pot bangers and poster wielders. After living under suspicion for months, the players were ultimately exonerated by prosecutors, who dropped all charges.”

Men and boys who are falsely accused of sex crimes are sometimes subject to brutal and fatal vigilante attacks. What “strong responsive action” will customs and policies will require universities to take steps to protect male students from such attacks? The answer, of course, is none.

So to summarize what is bad about the April 4th directive:

• Lowers standard of evidence to the unethically low “preponderance” standard
• Denies the accused party the due process rights to cross-examine accusers
• Violates constitutional due process protections from double-jeopardy
• Infringes upon student’s 5^th amendment right to not falsely incriminate themselves
• Investigates independently from, rather than deferring to, professionals in law enforcement
• Fails to protect falsely accused students from retaliation

 The April 4^th Directive represents an unethical and systemic attack on the civil rights of male students. It is ironic and disconcerting that a department which calls itself the Office of Civil Rights would overlook these rights, which are widely regarded as fundamental elements of our jurisprudence, and for good reason.

Students for Liberty is a student community dedicated to broadening the discourse on freedom of speech and due process on college campuses. In their article More Likely Than Not: The Office of Civil Rights’ Encroachment on Due Process, author David Deerson states,

“Obviously, this is an extremely controversial issue.  Sexual assault, particularly rape, is among the most heinous of crimes, and too often attitudes about what constitutes consent are insufficient. But this is not about what constitutes actual sexual assault.  This is about the natural and constitutional rights to due process. It doesn’t take James Madison to see why 50.0001% is not enough evidence to justify ruining someone’s life.”

This is not about being on the left or the right. This isn’t about being black or white, or gay or straight, or even male or female. This is about whether or not those accused of felony offenses, the conviction of which destroys reputations, careers, relationships, and often their lives, should be judged by the same standard of evidence used for traffic fines and parking tickets.

Please help raise awareness about this important issue by spreading the word about the unethical and destructive nature of the April 4^th Directive. To learn more, visit at websites like AccusingU.org, a division of Stop Abusive and Violent Environments. Take a tour of the world’s leading blog dedicated to giving a voice to victims of false accusations: The Community of the Wrongly Accused. Or browse the work of tenacious defender of due process on college campuses at thefire.org.

Our young men are mostly unaware that as soon as they set foot on campus, their universities are effectively holding a gun to their heads. Now more than ever, they need our help.

Who among us will speak in their defense?