May 172011

From Rick:

First, I want to thank all of the people who either left comments on my last entry or who took the time to write me kind words. “OCR versus the One-Trick Pony” and my other DCL entries generated a lot more traffic and feedback than I expected, further reinforcing my belief that educators see this as a very important discussion.

Beyond the DCL letter being an important point of discussion, it is also becoming clear that FIRE is being exposed as an organization with a political agenda and as an organization that is either unable or unwilling to take a reasoned position in order to promote collegial discourse. There is nothing collegial about FIRE, and their alarmist hyperbole about grand conspiracies that lack evidence reveals their true nature. Last week’s continued assault on the preponderance test is an excellent example of projecting hysteria over facts, and served as fodder for a close friend and colleague, Dan Kast, to write a response which will appear in detail in an article in the Summer 2011 issue of the Journal of Campus Safety & Student Development. I have had an opportunity to preview it and promise that people will not be disappointed with Dan’s reasoned but pointed response.

Like myself, Dan also had some strong reactions to FIRE’s hyperbole and took specific aim at a separate article written by Samantha Harris, FIRE’s Director of Speech Code Research. I won’t talk much about Dan’s response, since he has been kind enough to forward it to me to share via this blog. Suffice it to say that I enjoyed this piece immensely, and once again find Dan’s logic to be solid and his argument pointed. Enjoy the read!

Poking holes in FIRE’s false arguments (by Dan Kast)

If FIRE plans to make a case for having a seat at the table as discussions move forward about the appropriate resolution of sexual violence claims, it would be well-served to educate itself about the real problems faced by all of our students, instead of ignoring the plight of victims while alleging non-existent conspiracies to deprive the accused of fundamental fairness.

On May 5, 2011, the Foundation for Individual Rights in Education (FIRE) released its response to the Office for Civil Rights’ (OCR) “Dear Colleague Letter” of April 4. In this letter, FIRE argued that a preponderance of the evidence standard – used for decades by the majority of colleges and universities in all types of misconduct, and required by the Department of Education for the resolution of Title IX grievances – does not adequately protect the due process rights of accused students.

I had hoped FIRE’s oblivious lack of concern for, and disregard for the rights of, the victims of sexual assault was merely a consequence of its misguided belief in a widespread, systemic effort within higher education to force “political correctness” upon students and stifle freedom of expression. Viewed through this lens, an exclusive focus on the rights of the accused is understandable, though hardly justifiable. After all, FIRE’s mission is to “defend and sustain individual rights”; I can only assume this is meant to include everyone’s rights, not just those accused of serious misconduct.

It would appear I erred in giving FIRE the benefit of the doubt. Based on an article posted on FIRE’s web site on May 13, their objection to the use of a preponderance standard is the result of a fundamental misunderstanding of the nature of sexual violence on campus and the role of the student disciplinary process. The author, Samantha Harris, makes three faulty assumptions:

  1. The main difficulty in resolving complaints of sexual violence is in identifying the perpetrator.
  2. Campus disciplinary processes are meant as a substitute for criminal prosecution.
  3. OCR’s recommendation that institutions utilize a preponderance standard represents a change in how campus disciplinary processes operate.

In her article (“Everyone is Harmed by Reducing Due Process in Campus Sexual Assault Cases”), Harris responds to comments by Wendy Murphy, a leading victims’ rights advocate and adjunct professor at New England Law School. “While I would seriously contest Murphy’s implication that false rape claims do not happen (on this point I would refer readers to the Duke University lacrosse scandal, among others), a woman need not be lying about whether a rape occurred to be uncertain of her attacker’s identity.”

In other words, Harris claims that a preponderance standard is insufficiently rigorous to determine, to any acceptable degree of certainty, the identity of the rapist. Lest you think I am quote-mining the article to mischaracterize her argument, here is another excerpt: “[V]ictims do not benefit from a standard of proof that injects so much uncertainty into the process that it all but guarantees that some investigations will result in wrongful findings of guilt … in some of those cases it will mean that the actual perpetrator goes unpunished – an outcome that harms not only the victim in that case but potential future victims as well.”

It is worth noting this is the only point in the article where Harris acknowledges any interest a victim may have in achieving justice.

One more quote, for good measure: “Lowering the standard of evidence – which leaves greater room for human error and bias to infect the process – increases the chance that the actual perpetrator will go unpunished.”

Now, this is purely anecdotal, but in over 12 years of work in student conduct administration, I can say three things about sexual violence:

  1. I have never come across an allegation that turned out to be false. Misunderstandings, perhaps, but never an outright falsehood;
  2. I have never come across an allegation in which there was any confusion over the identities of the parties involved; and
  3. I can count on two fingers (maybe three) the number of cases in which a finding of violation could not be made based solely on the accused student’s own statement. (In one recent case, the accused made the following comment to the disciplinary hearing board:  “We were drunk, obviously, so I thought I could attempt [to have sex with her]; I might as well in the hallway.”)

This isn’t to say “stranger rapes” don’t occur, nor am I implying that it is impossible the wrong student might be found responsible for sexual assault in a case where the perpetrator is not clearly identifiable. I am saying the reality faced by our students bears little resemblance to the picture painted by Harris. Students are typically not assaulted in darkened parking lots; they are being victimized by friends and acquaintances in their own residence hall rooms. Students are not thrown out of universities because they have been wrongfully identified; they are being sanctioned because they fail to understand the nature of coercion, the role of alcohol and other drugs, and/or the boundaries of consent.

Sexual violence is a complicated issue, particularly on a college campus, where concentrated populations of young adults are exploring the limits of societal norms and individual freedom, often for the first time. There is a critical need for better education of our communities on this issue – education that is undermined by reactionary rhetoric and unsubstantiated allegations of wholesale malfeasance.

Harris burns another straw man in pointing out the difference between civil action and the campus disciplinary process: “Comparing civil litigation to disciplinary charges for criminal conduct is comparing apples to oranges.” This is true; then again, comparing campus disciplinary charges to “criminal conduct” is like comparing oranges to pears. She then piles on the irrelevancy by quoting the Rape, Abuse and Incest National Network (RAINN): “[Sexual violence] is a crime that should be handled through law enforcement.”

Yes. Yes it is. Please direct me to the nearest student conduct administrator who believes their process can or should be used as a replacement for the criminal courts, so that I may point and laugh at them. What Harris tries to highlight as a flaw in the system (“cases are frequently prosecuted by people with little or no legal experience”) is at worst a non-sequitur, and at best a feature, not a bug.

Finally, Harris makes the following argument: “Using relaxed standards of proof all but ensures that innocent students will be found guilty while perpetrators of sexual assault will remain free to continue their behavior.”

By calling a preponderance test a “relaxed standard of proof”, Harris is falsely implying that the current practice for colleges and universities is the use of the clear and convincing standard. Yet it is well understood within the profession that the preponderance standard is a best practice. When Ed Stoner and John Lowery published their revised Model Code of Student Conduct in 2004, the “more likely than not” standard was presented without comment or footnote. (Considering the number of footnotes in that document, that’s a Big Deal!)

Taken as a whole, Harris’ article seems less a reasoned argument against the use of the preponderance standard than a knee-jerk reaction to any attempt by OCR and/or institutions of higher education to maintain a focus on the needs of all students, not just the accused. As pointed out by my colleague Rick Olshak, due process is not a zero-sum game.

I concede there is an ongoing debate over the appropriate standard of evidence, whether it be a preponderance, clear and convincing, or something else. Preponderance is currently winning out. But FIRE seemingly has no interest in engaging that discussion in any thoughtful way, instead tossing out red herrings like “further-reaching consequences for a college student found guilty of sexual violence” and hyperbolic warnings of “a dramatic new erosion of due process protections”.

If FIRE plans to make a case for having a seat at the table as discussions move forward about the appropriate resolution of sexual violence claims, it would be well-served to educate itself about the real problems faced by all of our students, instead of ignoring the plight of victims while alleging non-existent conspiracies to deprive the accused of fundamental fairness.

Besides, one-trick ponies don’t look good in tinfoil hats.


  4 Responses to “Guest Comment: Poking holes in FIRE’s false arguments (by Dan Kast)”

  1. Rick & Dan, are there any other crimes that you feel should require a lesser burden of proof for conviction? Students are victims of a variety of crimes, and it would be a lot easier to keep the peace if it wasn’t so hard to punish the accused.

  2. I suspect if Mr Kast’s job was on the line due to an allegation of sexual misconduct, his lawyer would be saying a preponderance of the evidence standard violates Mr Kast’s 4th Amendment rights

  3. @Jerry-

    Not sure I understand the question. I don’t suggest that the crime of sexual assault should be adjudicated by the courts under a “lesser burden of proof”. Rather, I disagree with FIRE’s belief that the preponderance standard is insufficient for the purposes of campus discipline simply because the alleged behavior could also be considered criminal activity.


    In such a circumstance, I would hope to have counsel competent enough to know the guarantee of due process of law comes from the Fifth Amendment, not the Fourth. Regardless, in cases where an employee is terminated for cause, the appropriate standard is a preponderance of the evidence.

  4. Dear Dan,

    Thank you for your comments on my May 13 blog. I’ve responded on FIRE’s blog; you can read my response here:


    Samantha Harris, FIRE