Senate Bill Would Further Undermine Due Process on Campus

Article here. Excerpt:

'Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985)).

But in recent years, this due process safeguard has come under attack, most prominently in a legally-flawed April 4, 2011 “Dear Colleague” letter from the head of the U.S. Department of Education’s Office for Civil Rights, Russlynn Ali, who has demanded that colleges dilute the presumption of innocence in sexual harassment and assault cases by instead using a “preponderance of the evidence” standard that defines as guilty people who are as little as 50.001 percent likely to have committed the offense. I explained earlier why this demand was legally baseless, and not supported by either the Title IX statute or federal court rulings dealing with sexual harassment. (I was once a staff attorney at the Office for Civil Rights (OCR))

Now, the Senate draft bill to reauthorize the Violence Against Women Act (by Sen. Leahy’s Office) has inexplicably sought to expand the assault on due process. The draft VAWA bill would give OCR the power to set the “standard of proof” not only in harassment and rape cases, but also in other kinds of cases like “domestic violence,” “stalking,” and inappropriate behavior in dating relationships. It would do this even though OCR has jurisdiction (and expertise) only in certain kinds of discrimination cases (like sex discrimination and sexual harassment), not things like domestic violence.'