Nearly two years ago, in February 2010, University of North Dakota student Caleb Warner was thrown out of school with a three-year ban on reapplying after a campus disciplinary panel found he had violated criminal laws by sexually assaulting a fellow student. In fact, Warner was never actually charged with a crime in the justice systembut his accuser, Jessica Murray, was. In May of the same year, the Grand Forks, North Dakota police department formally charged her with filling a false report after concluding its investigation. (Murray now resides in California and has never appeared in court to answer the charge.) Yet Warner remained banned from campus until last month, when he was finally reinstated after the indefatigable FIREthe Foundation for Individual Rights in Education -- interceded to publicize his plight.
Now, some in Washington are pushing for measures that would create more such travesties.
Warner was found guilty under a "preponderance of the evidence" standard of proofthe lowest standard, under which a defendant is guilty if the disciplinary panel believes it is even slightly more likely than not that he committed the offense. Traditionally, most colleges have adjudicated charges of misconduct against students under the higher standard of "clear and convincing evidence"less stringent than "beyond a reasonable doubt," but nonetheless requiring an extremely strong probability of guilt.
A few months ago, the Office for Civil Rights of the Department of Education undertook to change that. On April 4, the OCR sent out a letter to colleges and universities on the proper handling of sexual assault and sexual harassment reports. One of its key recommendations was to adopt the "preponderance of the evidence" standard in judging such complaints.
