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Op-Ed: Why the lower standard of evidence in college sexual-assault cases is dangerous

An April 4, 2011, “Dear Colleague” letter from the U.S. Department of Education’s Office for Civil Rights (OCR) effectively wrote into law two new Title IX requirements, to the great surprise of colleges, civil liberties groups and several U.S. senators, including former secretary of education Lamar Alexander.

(In one particularly maddening vignette, the Office for Civil Rights managed to tell Senator Alexander in a hearing that the letter was not legally binding but that OCR expected schools to “comply” with it anyway.)

First, it decreed that schools must allow both sides to appeal in a sexual misconduct hearing.

In a criminal trial, even for something as minor as a speeding ticket, once you are found not guilty, the process is over.

This vital protection against double jeopardy is all that prevents a prosecutor from repeatedly trying to get you convicted of a crime and using up years of your life and all of your money in defense.

In my 13 years at the Foundation for Individual Rights in Education, I had never heard of any college that operated differently until 2011, when the Office for Civil Rights decided that accusers in campus cases must be able to appeal even when the accused was found not to have committed the offense.

Outrageous though this was, Congress’s 2013 reauthorization of the Violence Against Women Act made it the law of the land for now.

The second change, which has proved much more controversial, was the requirement that colleges “must use a preponderance of the evidence standard” (a 50.01 percent certainty of guilt) when determining guilt or innocence in sexual misconduct cases.

The Office for Civil Right’s contention appears to be that this lowest standard of proof is required by Title IX regulations that mandate that such a hearing be “prompt and equitable” and that a hearing cannot be equitable unless the burden of proof is as close to 50/50 as possible.

In contrast, the criminal justice system demands the much higher “beyond a reasonable doubt” standard (a 98–99 percent certainty of guilt), and even civil cases that involve significant reputational damage often require the “clear and convincing evidence” standard (an 80–85 percent level of certainty).

What effect does the preponderance mandate have in the college context?

Let’s look at some other aspects of the typical college disciplinary system in 2016. First, colleges decide for themselves who will preside over campus hearings and who will serve as jurors. Such panels frequently include college administrators, whose employment prospects may depend in part on their reaching the conclusion most convenient for the college. Some colleges even appoint a single administrator to serve as both judge and jury.

Most of the time, neither party to the hearings has a right to active participation of counsel. Cross-examination is limited or even forbidden altogether. There’s no guarantee that all the evidence will be shared with both parties — even exculpatory evidence — and the rules of evidence don’t apply anyway, with hearsay and other irrelevant “evidence” regularly considered.

The parties are usually not placed under oath, and consequences for lying are generally nonexistent.

Colleges frequently don’t even record the hearing or explain why they came to their decision.

I’d go so far as to say that not a single person at the Office for Civil Rights, nor anyone reading this, would believe it just if they or a loved one were to be tried for rape in a system using these rules, run by amateurs, and in which one’s guilt or innocence will be determined to a mere coin-toss level of certainty.

And the reason neither you nor they would agree to this is precisely because such a system is not, by any stretch of the imagination, just, fair, or equitable.

If you require further convincing, imagine a black college student being tried for sexual assault using such rules at the University of Alabama in 1965.

Only a madman — or someone utterly blinded by political ideology — would claim that such a system is “equitable.” Yet that is precisely the claim the Office for Civil Rights makes and that it unlawfully imposes on every college in the country.

Robert Shibley, a civil liberties attorney, is Senior Vice President of the Foundation for Individual Rights in Education.

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