Short-Lived Minnesota Football Protest Puts Campus Sex Assault Standard of Proof In Spotlight

The optics of a college football team boycotting a bowl game in support of teammates who allegedly committed a group sexual assault are certainly not rosy — particularly in 2016. This year saw Vanderbilt football players convicted of raping a fellow student, seemingly every Ivy League school suspending a male sports team for sexually vulgar behavior, and Baylor University suffering a nuclear lapse in oversight of its football team’s alleged sexual attacks.

Needless to say, the University of Minnesota football team’s recent threat to sit out the Holiday Bowl against Washington State on December 27 caused quite a stir.

The threatened boycott, however, ended before it really began once the school released the stomach-turning report of its Office of Equal Opportunity and Affirmative Action (EOAA) late Friday night. Even if only half of the EOAA’s damning report is true, then there was no way the football team could continue to back their teammates.

More importantly, the University was not, and frankly could not, ever give in to the team’s demands to reinstate the ten suspended players. University President Eric Kaler responded to the boycott threat by telling players that the school’s “institutional values” were greater than any single football game.

While this might be true, one of the top values at any university is the almighty dollar. In this situation, the potential loss of about $3 million in bowl revenue was a spit in the ocean compared to the disaster of losing billions in federal funding for violating Title IX. When Title IX is in play, a school’s otherwise most valuable commodities – football players – lose their leverage.

Yet the team’s ill advised boycott did accomplish an important goal of drawing a broader audience into the debate over whether we really want university administrators with a low standard of proof, rather than the criminal justice system, handling campus sex crimes.

Anyone who has ever watched a crime show or movie knows that to convict someone of a crime requires the prosecutor to meet a “beyond a reasonable doubt” standard of proof. This is the highest standard of proof in the legal system because in a criminal trial the government is literally trying to take away someone’s freedom, and at times, their life.

However, campus investigations of sexual violence adhere to a much lower standard of proof. In these Title IX proceedings, a student can be suspended or expelled under a “preponderance of the evidence” standard much like the civil justice system in America. This means that it is more likely than not that something happened. Trial lawyers often use the example of balancing a scale. If the scale tips ever so slightly in favor of the plaintiff, or just 51 percent, then the jury must find for the plaintiff.

This lower burden of proof has become the universal standard in Title IX proceedings due largely to a 2011 “Dear Colleague” letter from the U.S. Department of Education. This letter, written by the former Assistant Secretary for Civil Rights, Russlynn Ali, clearly advises that Title IX prohibits “discrimination on the basis of sex in education programs or activities operated by recipients of Federal financial assistance. Sexual harassment of students, which includes acts of sexual violence, is a form of sex discrimination prohibited by Title IX.”

The Department of Education then clarified that schools must use a preponderance of the evidence standard to evaluate complaints. The Department based this standard off of the burden of proof used in civil litigation involving discrimination claims brought under Title VII of the Civil Rights Act of 1964, which also prohibits discrimination on the basis of sex.

So this is the system campuses are left with. The federal government views sexual violence as a form of sex-based discrimination. Therefore, it mandates that any schools receiving federal funding utilize the civil standard of proof akin to a civil discrimination lawsuit or potentially lose that federal funding.

The glaring problem here is that unlike a civil discrimination lawsuit typically seeking monetary compensation, a campus Title IX complaint is going to result in the accused being suspended or expelled from school in addition to the life-long tarnish cast upon his or her reputation.

More troubling is that unlike criminal defendants, the accused students in campus Title IX complaints are not guaranteed the right to counsel, the right to present exculpatory evidence, or the right to confront and cross-examine their accusers and witnesses. At times, it can create a rather lopsided system, particularly since both parties typically consumed alcohol before the encounter at issue.

In the Minnesota football case, the players were not arrested or charged with any crimes. Of course, this does not mean they were innocent, but it means that the prosecutor did not believe there was enough evidence to warrant a criminal prosecution.

The criminal justice system is certainly not without major problems. Just ask Elie Mystal. However, we hold criminal prosecutions to a higher standard for a reason. Although students in Title IX investigations are not going to lose their physical freedom, the life-long consequences of a “conviction” are quite serious.

In Minnesota, it would appear that the football players deserved their punishments. How our colleges and universities arrive at such punishments, though, warrants a critical spotlight. For that, the bowl game boycott was not entirely useless.

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Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia. You can reach him at [email protected] or on Twitter @thelegalblitz.