One group pushing for more college involvement in campus sexual assault accusations wants to make sure there’s a black mark on the transcripts of any student punished for assault or harassment.
This suggestion by the Association of Title IX Administrators might be a good one if today’s campus climates were different. As matters stand, not one in which students who probably didn’t commit acts of sexual violence are routinely punished anyway.
To brand someone a rapist based on colleges’ preponderance of evidence standard — that is, based on 50.01 percent certainty the assault happened — is a dangerous precedent in itself. To brand someone for life in this way, effectively making transfers impossible, is even worse. I get where ATIXA is coming from, but if we’re going to try and keep a student from having a future, we probably need more certainty that he deserves it.
Currently, young college men are being expelled based on accusations without evidence, thanks to federal rules from the Department of Education. Many of these young men are fighting back by suing their universities for denying them due process. Colleges and universities are incentivized to punish students based on accusations alone, rather than to conduct a fair hearing that might result in a finding of “not responsible” and bring down federal pressure.
In a recent ruling from the Department’s Office for Civil Rights, the University of Virginia was faulted for violating the federal anti-discrimination law Title IX because it didn’t expel enough students who were deemed responsible in campus proceedings. But a university administrator said part of that was because the school wasn’t comfortable permanently expelling a student without stronger evidence that he had done something wrong.
Advocates frequently point out that the preponderance of evidence standard is the norm in civil court. But civil courts have basic due process protections that counterbalance that low standard of evidence. In civil court, defendants are permitted to have legal representation — not just a lawyer sitting silently beside them. They are entitled to discovery, subpoena power and sworn testimony — none of which are currently allowed in campus kangaroo courts.
If campuses offered an actual fair process that included due process protections for accused students, and schools were absolutely sure an assault took placed based on more than just he said/she said, then transcript notation might make sense. But since that is unlikely under current guidelines and pressure from the federal government, the idea, already adopted in New York and Virginia, is untenable.
As recently as March, campus activist and Yale Law student Alexandra Brodsky opposed the notation idea.
“I also worry about that because I think that people can change,” Brodsky said. “And my public defender hat says that we need to give people the opportunity to learn from this experience.”
Families Advocating for Campus Equality, a group of mothers whose sons had been wrongly accused and who provide support for other accused students, also came out in opposition to transcript notations. The group argues that if the “scarlet flag” is supposed to keep dangerous individuals from other campuses, then there’s no reason for police not to be involved. After all, the criminal justice system is the only means for getting violent offenders off of college campuses and off the streets, where they can continue to find new victims.
