Civil Rights Compromised

Originator of Troubling Sexual Assault Mandate Steps Down from Department of Education

On November 30, 2012, Russlynn H. Ali completed her final day as the assistant secretary for the Office of Civil Rights in the U.S. Department of Education; unfortunately, her policy directive addressing sexual assault on campus and flouting due process may outlast her.

Ali sent a “Dear Colleague” letter to colleges, universities, and schools across the country in April 2011 to explain federal standards on dealing with sexual violence. The document was a pointed reminder of colleges’ responsibilities in handling sexual assault allegations under Title IX of the Education Amendments of 1972 and mandated at the cost of losing federal funding—on which all major institutions of higher education have grown dependent– schools must follow Ali’s new guidelines for convicting students of sexual assault.

Among the most controversial changes is Ali’s mandate that schools must adopt a “preponderance of evidence” standard in investigating sexual assault cases, that is, determining whether it is more likely than not that sexual harassment or violence occurred (only a 50.1 percent likelihood) in order to find an accused person guilty. This burden of proof is lower than the “clear and convincing” standard that many colleges had been using, which requires finding that it was highly probable or reasonably certain that harassment or violence had occurred.

Further, universities are mandated to establish college boards to independently review sexual assault allegations, parallel to or in substitute of formal criminal proceedings. Here, it is important to note the difference between college disciplinary committees, whose policies are under revision as a result of this letter, and the criminal justice system. As stated in the letter, schools are under an obligation to investigate cases of sexual assault when a student uses the campus resources to file a complaint. The complainant may also press criminal charges against the alleged harasser by going through normal law enforcement investigation proceedings independent of the college.

Ali’s directive insists that even if the accused is found innocent, or it is determined by police investigators that there is not even enough evidence to press charges, the college disciplinary tribunal may still charge an individual, based on “a preponderance of evidence,” with sexual assault. A man may be charged with sexual assault by the standards of his college, even if there is not enough evidence to convict him in a court of law.

Though the policy is touted as more empowering for victims of sexual assault by holding an easier standard for proving their accusations, in reality the policy fails to protect the innocent from unjust harm.

Twice, FIRE penned letters expressing concerns about the potentially damaging effects of Ali’s assault on due process; twice, Ali declined to respond. (FIRE senior vice president Robert Shibley responded to Ali’s departure, “While we wish Ms. Ali the best, we hope her successor will end OCR’s silence regarding widespread concerns about the fundamental due process rights of students and faculty members.”) It wasn’t just FIRE that Ali ignored; due process concerns raised by the AAUP likewise went unanswered and even Stop Abusive and Violent Environments (SAVE) wrote a letter calling for the policy’s repeal.

It is unclear whether Ali’s successor, Seth Galanter, who had been deputy assistant secretary in the Office of Civil Rights, will refrain from Ali’s aggressive activity in the office or repeal any of her directives.

Ali stained her own legacy for civil rights by shunning a cleaner sort of justice; because using campus tribunals and lower standards of proof to handle one of the most sensitive and complicated question our judicial system deals with—rapist or not?—empowers neither the victim nor the accused.