Wendy Kaminer Highlights VAWA’s Potential Impact on Campus Due Process in ‘The Atlantic’

Article here. Excerpt:

'First, the reference to the "prompt and equitable" standard. This is new language, replacing the "preponderance of the evidence" requirement seen in an earlier version of the bill last fall. Our press release from last October voiced alarm about codifying the preponderance of the evidence standard, and we were pleased when Senator Patrick Leahy’s office removed that provision from the bill.

Unfortunately, by replacing the explicit "preponderance of the evidence" requirement with a mandate that university procedures for sexual assault cases must "provide a prompt and equitable investigation and resolution," the bill’s authors have reintroduced the problem.

To be clear, FIRE obviously does want campus disciplinary procedures to be prompt and equitable. Justice, no matter the venue, should always be prompt and equitable; indeed, it’s hard to imagine a just result that isn’t prompt and equitable.

However, this "prompt and equitable" standard is essentially a de facto incorporation of the preponderance standard. That’s because, as Kaminer notes, the Department of Education’s Office for Civil Rights (OCR) troublingly interpreted "prompt and equitable" to require the preponderance standard in its April 4, 2011, "Dear Colleague" letter.'