The Office for Civil Rights-mandated changes in University sexual-misconduct policies are not all good. Implementation of OCR policies at the University of Michigan caused sexual-misconduct complaints to rise from two and three in 2009 and 2010 to 68 in 2011, and the number continues to climb. If it was too difficult to file a complaint when clear and persuasive evidence was required, then it is now too easy.
“Preponderance of evidence,” as implemented at Michigan, favors a complainant and discriminates against a respondent because sexual-misconduct complaints are confidential. A respondent has no defense and cannot provide evidence when he or she isn’t allowed to know the complaint. Further, at Michigan, “preponderance of evidence” often is determined by a single professional acting in the combined role of solicitor, prosecutor, investigator, judge, and jury — a professional with little experience in education who is employed, directly or indirectly, to find misconduct.
There is a political element, too, when faculty encourage students to complain about other faculty. Professors are considered to have power over students, mediation is not allowed in sexual-harassment cases, and few professors can afford the OCR-mandated risk that mentoring now entails. We all lose in an environment like this. Management of sexual misconduct is a deeper and more difficult problem than might appear at first sight. Fairness, whatever the cost, is essential to maintain the core educational mission at Princeton and every leading university.