Title IX’s application to campus sexual assault was in the news this weekend, as the Washington Post profiled colleges’ and universities’ response to accusations of rape in the wake of the Department of Education’s 2011 Dear Colleague Letter (DCL) which clarified schools’ obligation under Title IX to investigate charges and effectively discipline those responsible. Most of the article focused on the letter’s requirement that schools use the “preponderance of evidence” standard to evaluate the case against the accused, rather than the more onerous “beyond a reasonable doubt” standard that is reserved for criminal matters where sanctions such as prison sentences are at stake. The article frames a controversy about the burden of proof by telling two stories. In one, a rape victim is vindicated by her university’s judicial process after the police refused to press charges, as they often do, due to the difficulty in satisfying the criminal burden of proof in matters that, typically have only two witnesses, the victim and the accused. In another story, a male student was railroaded through a university “kangaroo court” after being accused of rape by a woman with whom he’d had consensual sex. Police later brought charges against her for filing false charges, but not before the accused was expelled from school after university officials refused to hear his side.
While not denying that false reporting (a) happens, (b) is wrong, and (c) should be guarded against in the disciplinary process, I think the article creates a false linkage between what happened to that falsely accused student and the DCL. It sounds like the university failed to investigate thoroughly and to give equal treatment to both sides, as Title IX and the DCL require. Blaming the preponderance standard in that case is like blaming the level playing field for a game you lose due to bad call from a biased referee. It’s not fair to use that story to anchor the suggestion of opposition to the DCL, given that it doesn’t appear the DCL was followed in that case.