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Feds warn colleges: handle sexual assault reports properly

The Obama administration has taken a tougher stance after federal officials saw problems at a number of schools. But some say the administration is taking things too far.

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"It has the potential to really change campus climates if universities take it as the wake-up call it's intended to be," Ms. Maatz says.

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Some higher-education lawyers say the new letter is lengthy and burdensome to schools and should have taken the form of regulations subject to public comment.

One big concern is that the letter tells campuses they must use a "preponderance of the evidence" standard when weighing allegations. That means an official or disciplinary body needs to be just over 50 percent sure the incident occurred.

To require this of campuses that have been using a higher burden of proof is not only to micromanage them, but also to make it more likely that the falsely accused will be punished, says FIRE's Mr. Shibley.

Some campuses had used a "clear and convincing" standard, which requires about 75 percent certainty, he says. A few, such as Stanford, had even required "beyond a reasonable doubt," similar to a criminal trial.

Shibley cites the case of a University of North Dakota student who was found guilty of sexual assault in a campus procedure using the preponderance standard. The university suspended him. Meanwhile, the police had decided to charge his accuser with filing a false claim, and she left to dodge the arrest warrant, Shibley says.

Russlynn Ali, head of OCR, denies that the standard is unfair: "We are firmly committed to respecting students' due process rights and believe wholeheartedly that the requirements in the 'Dear Colleague' [letter] are entirely consistent with those rights."

About 80 percent of colleges were already using the preponderance standard, Ms. Ali estimates. For Title IX enforcement, she adds, it's a longstanding practice.

"To go with a standard higher than preponderance of the evidence would tilt the scales inappropriately in favor of the accused individual," says Saundra Schuster, who trains campus Title IX coordinators as a partner at the National Center for Higher Education Risk Management in Malvern, Pa.

The preponderance standard works well at the University of Tennessee at Chattanooga, says Sara Peters, director of the Women's Center there. Rulings have come down at times in favor of the accuser, and at other times in favor of the accused. "If you have a judicial board that is trained to look at the evidence and really think it through, then it should work as intended," she says.

Even with that standard, Ms. Peters says, it's difficult to get apparent victims to proceed with either criminal or campus-misconduct charges.

One area of confusion on some campuses, says Ali of OCR, has been how best to coordinate in cases where local police are involved.

For example, a general counsel at one university had been threatened with obstruction-of-justice charges by police when he tried to conduct an investigation of a rape charge, Ali says. OCR helped the university and the police work up an agreement allowing three to 10 days for police to gather forensic evidence such as DNA before the campus started its investigation. But it also included the provision that the university would offer the alleged victim immediate support.


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