Volokh Wrong to Defend the “Dear Colleague” Standard

Eugene Volokh posts a counterintuitive argument (from a
civil libertarian’s standpoint) defending the OCR-imposed
preponderance-of-evidence standard for campus allegations of sexual assault.
Since Volokh advances a much more compelling argument for the change than did
the OCR’s “Dear Colleague” letter, the
post is worth reading in full. His basic argument: campus allegations of
sexual assault are most appropriately analogized to “ordinary civil liability or government employee dismissals, in which
case a more-likely-than-not standard would suffice.” (Volokh takes no
position on whether the OCR had the authority to issue the new mandate through
a creative interpretation of Title IX.)

Volokh frames his post as theoretical; he doesn’t claim
to address the specific campus context of the new standard. Yet, I’d submit, in
at least three separate ways, it’s not possible to avoid context when
discussing the OCR mandate:

(1) The letter.
The new threshold wasn’t a stand-alone recommendation, but part of a package of
three changes demanded (or strongly suggested) by OCR. The other two
provisions: right of an accuser to appeal a not-guilty finding (mandated) and
denial of an accused student’s right to cross-examine his accuser (strongly
encouraged). It’s far more difficult to develop innocent theoretical
explanations for either of these proposals, especially the latter, which Volokh
does seem to oppose.

(2) Current
standards. As readers of Shadow
University or of the FIRE website know, the pre-“Dear Colleague” letter
disciplinary processes weren’t exactly bastions of due process. Volokh himself
concedes “there are other criticisms of
university disciplinary proceedings, such as that the adjudicators are biased,
or that the defendant doesn’t have adequate opportunities to cross-examine the
witnesses against him. Those are serious objections, but I think they warrant
changing those aspects of the proceedings, rather than trying to compensate
with a clear-and-convincing-evidence standard (which would be a highly over-
and underinclusive compensation for those other problems).” It’s
theoretically possible that colleges will respond to the “Dear Colleague”
letter by simultaneously enhancing due process for accused students in other
ways. It’s also theoretically possible that Harvard will select Michelle
Bachmann as next year’s commencement speaker. Neither, in short, has any
realistic chance of occurring. The clear-and-convincing threshold was so
important, in part, because it ensured at least a minimum of fairness in a
system that was already wildly tilted in favor of the accuser.

(3) Implementation
of the new standards. Volokh concludes by noting that “it’s certainly possible to imagine different quanta of
proof required depending on the gravity of the punishment (e.g., more likely
than not for reprimands or even suspensions, clear and convincing evidence for
expulsion) or on the gravity of the offense (e.g., more likely than not when
someone is accused of a sex crime, clear and convincing evidence when someone
is accused of minor vandalism or starting a not very dangerous fight).
Generally speaking, that’s not the way our legal system has mostly developed
within the area of civil liability or criminal liability, but such distinctions
are in some measure present even there, and one can imagine similar distinctions
in university administrative proceedings.” Our legal system, clearly,
however, does not work in the opposite direction–making
it easier to convict someone accused of more serious offenses. Yet at least
four high-profile universities (Yale, Stanford, UNC, and Cornell) have, in
different ways, implemented the “Dear Colleague” letter to make it easier to
find a student guilty of sexual assault than of less serious offenses such as
underage drinking in the dorm or incidental cheating on an exam.

Whatever theoretical defenses of the
preponderance-of-evidence threshold might be made, in practical terms, it’s
highly problematic.