Federal Rules Prompt Change to UNC-CH Sexual Assault Policy | Eastern North Carolina Now

   Publisher's note: Duke Cheston is a reporter and writer for the John W. Pope Center for Higher Education Policy (popecenter.org). His article here appeared in the Carolina Journal.

Burden of proof in cases lowered, leading some to call rule 'Kafka-esque'

    RALEIGH     The University of North Carolina at Chapel Hill has an unusual student disciplinary system. Although other schools sometimes involve students in disciplinary proceedings, UNC's "Honor Court" is entirely student-run and student-led. Students even prosecute students for sexual assault -- but that soon may change following the issuance of new federal regulations.

    In April 2011, the Obama administration's Office of Civil Rights sent a "Dear Colleague" letter to colleges across the country to explain newly created federal rules on dealing with sexual violence. A major change was to lower the burden of proof for colleges to punish students for sexual assault, which ranges from attempts of forced kissing up to and including rape.

    The new rules ostensibly come from a reinterpretation of Title IX of the Education Amendments of 1972, the law that prohibits colleges that receive federal funds from discriminating based on gender -- best known for requiring women's sports to be treated equally to men's. Arguing that sexual assault is a form of gender discrimination, the OCR decreed a handful of new regulations.

    The most aggressive new interpretation was a mandate that colleges and universities lower the burden of proof when deciding cases of assault. The bar was dropped to the lowest possible standard, a "preponderance of evidence." In other words, a college disciplinary committee merely needs to decide that an accused individual is more likely than not to have committed a crime. Those deciding the case must be only 50.1 percent sure of guilt. That standard is lower than the one used in criminal cases, which is "beyond a reasonable doubt," and generally thought of in numeric terms as 98 percent certainty of guilt.

    In general, civil cases in the public judicial system use the "preponderance of evidence" standard. Those cases, however, have more protections for the accused than do the proceedings on college campuses. The accuser can be deposed under oath, and both sides must present their supporting evidence.

    The "preponderance" standard has long been used in discrimination cases in federal courts and on college campuses, but sexual assault had not previously been defined as a case of discrimination. UNC-Chapel Hill's Honor Court, for instance, used the "beyond a reasonable doubt" measure for sexual misconduct cases. But now, as a result of the Dear Colleague letter, it will have to make the standard less stringent.

    While these lower protections for the accused won't result in criminal convictions, they may very well result in innocent students' expulsion or suspension from school -- a black mark following them for the rest of their lives.

    Civil libertarians are outraged at the Dear Colleague letter, with law professors on several campuses denouncing the new rules as "Kafka-esque."

    At UNC-Chapel Hill, many students are uncomfortable even with the current system.

    One UNC student who identified as a rape victim told Carolina Journal that she regretted going to the Honor Court with her case. She said that "most students see that the honor court is inadequate," and does not think that an "untrained 20-year-old" should decide if someone has been a victim of sexual assault.

    Complaints about the current system and the federal "Dear Colleague" letter combined to lead UNC-Chapel Hill to rework the way it deals with sexual assault cases. The publication Inside Higher Ed cited UNC-Chapel Hill as one of the first schools to respond to the new federal rules. Chancellor Holden Thorp told the Daily Tar Heel, "The best way to comply with [the new policies] is to redo the whole thing."

    Administrators have yet to release the details of the new system, but early indications suggest students will still be involved with the sexual assault disciplinary process, though with more training.