By Bob Unruh at WND
A federal regulatory move to lower the standard for convictions in on-campus trials for offenses such as sexual assault to the “preponderance of evidence” has been thwarted, according to the U.S. Department of Education.
Criminal trials must show guilt “beyond a reasonable doubt,” but on campuses a higher standard of “clear and convincing” evidence has been utilized.
However, changes proposed by the federal agency would have mandated the use of the “preponderance” standard, which could produce a conviction based on evidence that shows nothing more than a person is more likely guilty than not.
The proposed change would make obtaining convictions in on-campus disciplinary trials much easier and quicker, analysts said.
Various civil and student rights organizations had fought the proposal, and word came on their victory through Inside Higher Education.
The group said the draft regulation approved this week after a series of meetings on the plans “scrapped a controversial effort by the Education Department to require campus sexual assault proceedings to adhere to guidance issued by the department’s Office for Civil Rights.”
The report said the civil rights office in 2011 told colleges “they must use a ‘preponderance of the evidence’ standard for such proceedings, a lower threshold than the ‘clear and convincing’ standard that many institutions had been using.”
Rights advocates had accused federal officials of trying to impose the lower standard through regulations even though Congress specifically had rejected the idea.
One of the groups monitoring the situation, the Foundation for Individual Rights in Education, had said it was a “bait and switch” tactic to discuss imposing the lower standards while talking about about the application of the requirements of the Clery Act.
“The negotiated rule making process does not empower negotiators to sneak into law substantive requirements that were debated and rejected by Congress,” said Joe Cohn, the legislative director for the organization. “Negotiated rule makers were not elected by the public. They must not replace Congress’ will with their own.”
Other rule changes would have colleges expand reports on campus crimes, provide more details about disciplinary hearings and run sexual assault prevention programs.
The Education Department panel assembled the draft of safety rules as part of congressional amendments to the Clery Act, as part of the reauthorization of the Violence Against Women Act.
Domestic violence, dating violence, stalking and hate crimes all are being addressed in the changes, which also would allow students to be represented by lawyers if they are accused.
The rules now will be subject to a public comment period.
WND recently reported on one case that developed as a byproduct of on-campus proceedings. A federal judge said a series of claims by a student-athlete against his school will go to trial after he was branded a rapist in a campus hearing even though a local prosecutor who investigated said the case should be dropped.
The ruling from U.S. District Judge Arthur Spiegel rejected the request by Xavier University to toss the entire case. It ordered a trial on claims by Dezmine Wells regarding breach of contract, intentional infliction of emotional distress, libel through injury to his personal reputation, his profession reputation and with malice, negligence and discrimination.
The school released only a statement on the dispute.
“We’re pleased that the court dismissed a number of the claims at this point,” the university said. “The court’s decision was based solely on the facts as alleged by Mr. Wells and his lawyers in their amended complaint, as is required by court rules at this early stage in the litigation. After the actual facts are disclosed to the court, we are confident that the result will vindicate Xavier.”
Catherine Sevcenko, an attorney, commented on the website of the Foundation for Individual Rights in Education that Wells was expelled for sexual assault “in spite of the local prosecutor’s public statements that the evidence did not support the accuser’s allegations.”
WND previously had reported on the federal campaign to have the lower standard of proof adopted. It arose after a high profile case involving student Caleb Warner from the University of North Dakota in Grand Forks.
Warner was found guilty of sexual assault by a campus court in 2010, despite the facts established at the time by city police. Officers not only refused to charge him in the case but also alleged his accuser made a false report. Police issued a warrant for her arrest.
Even so, the university process found Warner guilty, and it took 18 months to resolve. During that time, Warner not only was banned from the UND campus but also from all college campuses in the state.