Washington Monthly - September/October 2015 - 71
tainty. But criminal punishment is not at stake in university disciplinary proceedings. What is at stake is whether
a student presents enough of a threat to other students to
warrant the school taking steps to protect those other students. At the extreme, those steps might include expulsion.
But it is far more typical, even in sexual misconduct cases,
for schools to adopt more tailored protective steps, whether suspensions, reprimands, counseling requirements, or
orders requiring perpetrators to stay away from their victims. Where protection, and not criminal punishment, is
at stake, we should weight the interests of those who claim
that they have been subject to misconduct just as heavily
as the interests of those whom they accuse of committing
misconduct. And particularly where schools adopt the preponderance standard for disciplinary proceedings involving other potentially criminal conduct, as they typically do,
they should do the same for disciplinary proceedings involving sexual misconduct.
To be sure, there are difficult questions here. University disciplinary proceedings that charge students with
misconduct that is also criminal must be carefully coordinated and sequenced with criminal investigations and
prosecutions, lest the accused students give up (whether inadvertently or under pressure) key protections such
as the privilege against self-incrimination. But thoughtful universities and law enforcement officials can address
those issues without leaving campus sexual violence to the
criminal justice system-which is appropriately deliberative and protective of the accused, but which as a result
cannot alone serve the non-criminal function of protecting students.
Nor is the OCR's resolution of the standard-of-proof
issue free from doubt. A charge of sexual violence is an incredibly serious matter, even if criminal punishment is not
at stake. To many, it appears different in kind from a charge
of assault, vandalism, or theft. Add the fact that a significant subset of cases are (literally) he-said/she-said affairs,
and many observers believe that a university should not
be entitled to discipline a student for a sexual violence
charge without a greater degree of certainty than a mere
preponderance of the evidence. But to elevate the standard
of proof is to give more weight to the interests of accused
students to be free from erroneous discipline than to the
interests of victims against erroneous failures to discipline
students who actually harmed them. The preponderance
standard gives equal weight to the important interests on
both sides. And the procedures in disciplinary proceedings,
as the OCR guidance says, should provide the accused student a fair opportunity to develop evidence and ensure that
the accuser's story is well tested. Absent reason to believe
that allegations of sexual assault are especially likely to be
false-and, certain examples to the contrary, the evidence
is that such allegations are generally true-the OCR's endorsement of the preponderance test represents at least a
reasonable resolution of an arguable issue.
T
he horror stories, then, are not the result of the Department of Education pronouncements themselves but of
universities going well beyond anything that the department has purported to require. What has led universities to react in such an extreme manner? A principal explanation would
point to the bureaucracy that, at most universities, is assigned
the task of implementing the department's pronouncements.
A 2014 analysis found that the number of university administrators had "more than doubled in the last 25 years, vastly outpacing the growth in the number of students or faculty." Many
of these administrators work in the field of "compliance." In
other words, their job is to ensure that the university complies
with the regulatory mandates that apply to it. This compliance
function can be salutary, but it comes at a cost. Because compliance administrators do not come from the faculty, they are
Russlynn Ali, the assistant
secretary tasked in 2011
with responding to the
problem of sexual assault
and harassment on campuses,
was an able veteran of civil
rights and education reform
groups, but she had no
experience working in higher
education administration.
Nor did her successor, the
talented civil rights attorney
Catherine Lhamon.
unlikely to fully appreciate the academic values of independent
inquiry that challenges-often aggressively-the certitudes of
students and others in the academic community. When that
lack of grounding in academic values is combined with the tunnel vision that arises whenever an office is designed with the
sole aim of maximizing compliance with a particular mandate,
it is a prescription for a bureaucracy that prefers to sanitize
the classroom, and override fair-process interests, in order to
avoid any risk of being found to have violated the applicable
regulations. A very similar dynamic has led institutional review boards to metastasize at American universities, as Zachary Schrag recently pointed out in these pages ("You Can't Ask
That," September/October 2014).
The Department of Education should have seen this
coming. A major, highly publicized government enforcement
Washington Monthly
71
Table of Contents for the Digital Edition of Washington Monthly - September/October 2015
Contents
Washington Monthly - September/October 2015 - Cover1
Washington Monthly - September/October 2015 - Cover2
Washington Monthly - September/October 2015 - 1
Washington Monthly - September/October 2015 - 2
Washington Monthly - September/October 2015 - 3
Washington Monthly - September/October 2015 - 4
Washington Monthly - September/October 2015 - 5
Washington Monthly - September/October 2015 - 6
Washington Monthly - September/October 2015 - 7
Washington Monthly - September/October 2015 - 8
Washington Monthly - September/October 2015 - Contents
Washington Monthly - September/October 2015 - 10
Washington Monthly - September/October 2015 - 11
Washington Monthly - September/October 2015 - 12
Washington Monthly - September/October 2015 - 13
Washington Monthly - September/October 2015 - 14
Washington Monthly - September/October 2015 - 15
Washington Monthly - September/October 2015 - 16
Washington Monthly - September/October 2015 - 17
Washington Monthly - September/October 2015 - 18
Washington Monthly - September/October 2015 - 19
Washington Monthly - September/October 2015 - 20
Washington Monthly - September/October 2015 - 21
Washington Monthly - September/October 2015 - 22
Washington Monthly - September/October 2015 - 23
Washington Monthly - September/October 2015 - 24
Washington Monthly - September/October 2015 - 25
Washington Monthly - September/October 2015 - 26
Washington Monthly - September/October 2015 - 27
Washington Monthly - September/October 2015 - 28
Washington Monthly - September/October 2015 - 29
Washington Monthly - September/October 2015 - 30
Washington Monthly - September/October 2015 - 31
Washington Monthly - September/October 2015 - 32
Washington Monthly - September/October 2015 - 33
Washington Monthly - September/October 2015 - 34
Washington Monthly - September/October 2015 - 35
Washington Monthly - September/October 2015 - 36
Washington Monthly - September/October 2015 - 37
Washington Monthly - September/October 2015 - 38
Washington Monthly - September/October 2015 - 39
Washington Monthly - September/October 2015 - 40
Washington Monthly - September/October 2015 - 41
Washington Monthly - September/October 2015 - 42
Washington Monthly - September/October 2015 - 43
Washington Monthly - September/October 2015 - 44
Washington Monthly - September/October 2015 - 45
Washington Monthly - September/October 2015 - 46
Washington Monthly - September/October 2015 - 47
Washington Monthly - September/October 2015 - 48
Washington Monthly - September/October 2015 - 49
Washington Monthly - September/October 2015 - 50
Washington Monthly - September/October 2015 - 51
Washington Monthly - September/October 2015 - 52
Washington Monthly - September/October 2015 - 53
Washington Monthly - September/October 2015 - 54
Washington Monthly - September/October 2015 - 55
Washington Monthly - September/October 2015 - 56
Washington Monthly - September/October 2015 - 57
Washington Monthly - September/October 2015 - 58
Washington Monthly - September/October 2015 - 59
Washington Monthly - September/October 2015 - 60
Washington Monthly - September/October 2015 - 61
Washington Monthly - September/October 2015 - 62
Washington Monthly - September/October 2015 - 63
Washington Monthly - September/October 2015 - 64
Washington Monthly - September/October 2015 - 65
Washington Monthly - September/October 2015 - 66
Washington Monthly - September/October 2015 - 67
Washington Monthly - September/October 2015 - 68
Washington Monthly - September/October 2015 - 69
Washington Monthly - September/October 2015 - 70
Washington Monthly - September/October 2015 - 71
Washington Monthly - September/October 2015 - 72
Washington Monthly - September/October 2015 - 73
Washington Monthly - September/October 2015 - 74
Washington Monthly - September/October 2015 - 75
Washington Monthly - September/October 2015 - 76
Washington Monthly - September/October 2015 - 77
Washington Monthly - September/October 2015 - 78
Washington Monthly - September/October 2015 - 79
Washington Monthly - September/October 2015 - 80
Washington Monthly - September/October 2015 - 81
Washington Monthly - September/October 2015 - 82
Washington Monthly - September/October 2015 - 83
Washington Monthly - September/October 2015 - 84
Washington Monthly - September/October 2015 - 85
Washington Monthly - September/October 2015 - 86
Washington Monthly - September/October 2015 - 87
Washington Monthly - September/October 2015 - 88
Washington Monthly - September/October 2015 - 89
Washington Monthly - September/October 2015 - 90
Washington Monthly - September/October 2015 - 91
Washington Monthly - September/October 2015 - 92
Washington Monthly - September/October 2015 - 93
Washington Monthly - September/October 2015 - 94
Washington Monthly - September/October 2015 - 95
Washington Monthly - September/October 2015 - 96
Washington Monthly - September/October 2015 - 97
Washington Monthly - September/October 2015 - 98
Washington Monthly - September/October 2015 - 99
Washington Monthly - September/October 2015 - 100
Washington Monthly - September/October 2015 - 101
Washington Monthly - September/October 2015 - 102
Washington Monthly - September/October 2015 - 103
Washington Monthly - September/October 2015 - 104
Washington Monthly - September/October 2015 - 105
Washington Monthly - September/October 2015 - 106
Washington Monthly - September/October 2015 - 107
Washington Monthly - September/October 2015 - 108
Washington Monthly - September/October 2015 - 109
Washington Monthly - September/October 2015 - 110
Washington Monthly - September/October 2015 - 111
Washington Monthly - September/October 2015 - 112
Washington Monthly - September/October 2015 - 113
Washington Monthly - September/October 2015 - 114
Washington Monthly - September/October 2015 - 115
Washington Monthly - September/October 2015 - 116
Washington Monthly - September/October 2015 - 117
Washington Monthly - September/October 2015 - 118
Washington Monthly - September/October 2015 - 119
Washington Monthly - September/October 2015 - 120
Washington Monthly - September/October 2015 - 121
Washington Monthly - September/October 2015 - 122
Washington Monthly - September/October 2015 - 123
Washington Monthly - September/October 2015 - 124
Washington Monthly - September/October 2015 - Cover3
Washington Monthly - September/October 2015 - Cover4
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20230910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20220910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20210910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20200910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20190910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20180910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20160910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20150910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20140910
https://www.nxtbook.com/nxtbooks/washingtonmonthly/20120910
https://www.nxtbookmedia.com