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‘Reason’ Magazine Takes on Campus Due Process Problems

By December 17, 2013

In Reason magazine’s January 2014 issue, Cathy Young highlights the troubling reduction in due process protections afforded to students accused of sexual assault or harassment on college campuses.

In particular, Young notes the problematic implications of using the “preponderance of the evidence” standard in such cases, as was mandated by the U.S. Department of Education Office of Civil Rights in its April 2011 “Dear Colleague” letter. Young observes:

In the midst of a moral panic, the rights of the accused-including the wrongly accused-count for little. In May The Daily Princetonian, Princeton University’s student daily, ran an editorial urging the school to change its standard of proof in sexual assault cases from “clear and convincing evidence” to “preponderance of the evidence.” Noting that “sexual assault is unique among cases requiring on-campus discipline” in its lack of corroborative evidence and its he said/she said nature, the editorial board concluded that the “clear and persuasive” standard might be appropriate for charges of theft, assault, or drug use, but it is “inappropriate in the case of sexual assault.”

[…]

While the immediate consequences of being found guilty by a campus tribunal are limited to academic or disciplinary sanctions, these cases are likely to have repercussions beyond the insular world of academe. A student’s conviction of sexual assault, even in college judicial proceedings, goes on his college record and is thus apt to follow him to other schools and to be brought to the attention of prospective employers.

Young also correctly points out that the ever-broadening definitions of sexual assault and sexual harassment only exacerbate these due process problems:

Since it’s extremely unlikely that most college students will pause for a “May I?” before each intimate act, or stop having sex under the influence, the real outcome of the new campus policies will be to make virtually every sexually active male student vulnerable to a sexual offense charge if his partner retroactively reinterprets the experience as nonconsensual. Aside from the obvious unfairness to men, this is hardly a prescription for healthy interaction between men and women-or for basic respect for justice.

Interested readers can access the full article here.