FIRE Co-founder and Chairman Harvey Silverglate’s Friday op-ed in The Wall Street Journal continues to draw attention to the absurd rulings of some campus courts, and underscores the due process concerns raised by schools’ harried attempts to comply with the Department of Education’s Office for Civil Rights’ (OCR’s) mandate to use the "preponderance of the evidence" evidentiary standard.
Last Friday, Trevor Burrus, a legal associate with the Cato Institute, wrote a piece for Cato’s blog, Cato@Liberty, praising Harvey and FIRE for "highlighting the emerging problem of due process violations on college campuses." As Burrus aptly noted, the preponderance of the evidence mandate requires schools to find students guilty of crimes as serious as sexual assault on "little more than a hunch." This mandate harms due process rights because "[w]hile universities are not putting anyone in jail, merely being accused of a rape, much less being convicted by your university, has many of the same concerns as a criminal trial." The OCR’s new mandate, combined with the tendency of some campus courts to defy common sense, foreshadows future miscarriages of justice in campus disciplinary proceedings.
As FIRE works to defend the constitutional rights of students and faculty on our nation’s campuses, we thank Burrus and Cato for bringing even more attention to these and other violations of liberty.