FIRE is one of those organizations that make you uncomfortable - while you agree with them for the most part at times you see them defend persons some would consider less than wholesome for causes you might not agree with in order to defend rights and legal principles. This is one of those times.
Right now there’s a push to use title X as a club to encourage Universities to improve their handling of sexual harassment, rape, rape reports, and the rights of victims. If you watch “The Goodwife” then you’ve seen this situation dramatized and then resolved in a grey murky manner that left you feeling queasy about both sides. You can see that processes and policies on campus do need to improve, but they need to protect both the rights of the victim and the accused in equal manner, something you saw as the crux of the issue in “The Goodwife’s” example.
The Department of Education’s Office for Civil Rights (OCR) announced last week that it has entered into a resolution agreement with Princeton University after finding that the institution was in violation of Title IX. OCR’s demands include the use of the “preponderance of the evidence” standard of proof in adjudicating sexual misconduct cases—meaning that students accused of sexual assault or harassment must be found guilty if the fact-finders determine it is more likely than not that he or she committed the violation.
As FIRE has noted on The Torch before, until recently, Princeton was one of just a small number of institutions (PDF) still requiring “clear and persuasive” evidence of guilt (generally considered to be the same as the “clear and convincing” standard) in such cases. Most colleges and universities adopted the “preponderance” standard following OCR’s April 4, 2011 “Dear Colleague” letter. There is debate, though, over whether the standard is required by Title IX. FIRE’s Joe Cohn spoke with Inside Higher Ed about the change at Princeton. IHE reported last week:
While the Department of Education has the ability to determine what exactly violates Title IX and potentially pull federal funding from colleges who are in violation, preponderance of evidence has not been codified by Congress. The Campus SaVE act does not dictate what standard a college should use, only requiring that institutions disclose what that standard is. Joe Cohn, legislation and policy director at the Foundation for Individual Rights in Education, said that the department is “on shaky ground when they insist that preponderance of evidence is the only acceptable standard of proof under Title IX,” because, legally, it is only the current administration’s interpretation of the law.
More: Princeton Adopts ‘Preponderance’ Standard, Reaches Agreement With Department of Education