People often assume that self-described liberals are more supportive of due process than self-described conservatives. That certainly isn’t the case when we talk about the illiberal bureaucrats who run the United States Department of Education.
The notion that an adult charged with a felony should be put on trial using the same standard of evidence used for someone who has been issued a parking ticket is absurd. In fact, it is more than absurd. It is offensive to well-established principles of due process and fundamental fairness.
Recently, however, the Department of Education's Office for Civil Rights (OCR) has announced new guidelines that will force due process to take a back seat to political correctness. These guidelines will apply to sexual harassment and felony sexual assault cases.
The OCR has decided to teach universities something they already know; namely, that sexual assault and sexual harassment are serious offenses. In the process, however, they are putting innocent students at risk of being wrongly convicted of offenses that could potentially destroy their careers and reputations.
According to the new OCR guidelines, any college that accepts federal funding or federal student loans (close to 100% of our nation’s colleges) must now employ a "preponderance of the evidence" standard of proof in sexual harassment and sexual assault cases. This lowered standard replaces the traditionally accepted standard of proof beyond a reasonable doubt, which, according to most triers of fact, is close to 100% confidence of guilt. In contrast, “preponderance of evidence” means the campus judiciary only needs to be 50.01% confident that a person is guilty of a given offense – even if that offense is rape, which, regardless of degree, is always a serious felony.
This mandate from the federal government will have profound real-life costs for real students. If we learned anything from the infamous Duke Lacrosse case it is this: Academia is quick to blame people for creating a “rape culture” on campus and slow to take responsibility for false accusations.
Unfortunately, Duke was not an isolated case. At Stanford, student jurors in sexual misconduct cases are actually given "training materials" that say things like, "Everyone should be very, very cautious in accepting a man's claim that he has been wrongly accused of abuse or violence” and “An abuser almost never 'seems like the type.'"
In other words, even highly respected universities like Stanford try to create unfair and partial juries prior to rape adjudications – in clear violation of the spirit of the 6th Amendment (Do you remember when liberals cared about the “spirit of the law”?). Adding a mere “preponderance” standard to such a toxic environment would be a recipe for disaster – disaster in the form of wrongful felony convictions.
The OCR mandates are not merely confined to actions. They apply to students' speech, too. Columbia University already lists "love letters" as a form of sexual harassment. The University of California, Santa Cruz, classifies using "terms of endearment" as sexual harassment. (Who could have ever imagined that one could be endeared and harassed at the same time?). At Yale, "unspoken sexual innuendo such as voice inflection" is considered sexual harassment. The absurdities are seemingly endless in 21st Century “hire” education.
Shortly after the evidence revealed that the accuser in the infamous Duke Lacrosse case was lying, I wrote a letter to Duke Professor K. Holloway. She was the ringleader of the “Duke 88” – a bunch of professors who publicly accused the Duke Lacrosse players of both rape and racism before they had their day in court. In my letter, I urged her to take responsibility for damaging the reputations of innocent students at her own university. Her response is printed below in its entirety:
“Mr. [sic] Adams: You have made the error of anticipating that I have some interest in what you have to say. I do not. K. Holloway.”
Professor Holloway may not be a rapist. But she is clearly a racist. Nonetheless, she has inspired me to write to the OCR with a modest proposal for handling sexual assault cases on college campuses.
Under my plan, any time a collegiate man is charged with rape his accuser is automatically charged with criminal libel. If she fails to prove her case then she is automatically convicted and expelled.
I plan to write to Professor Holloway because I anticipate that she has some interest in what I have to say. My anticipation might be in error. But, unlike sanctimonious feminists, I’m prepared to face the consequences if I’m wrong.
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