In a 2011 letter to colleges, the U.S. Department of Education's Office of Civil Rights (OCR) mandated that in cases of suspected sexual harassment or sexual assault, universities were to reduce the standard of proof to a more likely than not standard. The new standard requires that fact finders believe only that there is a 50.01 chance that the charges are true.
I warned at the time that students falsely accused could see their lives upended and possibly destroyed. Clearly, if a student has committed a crime or serious offense, the university has a duty to investigate. But serious charges, which can blight careers, require serious guarantees of the rights of the accused. In a court of law, a defendant has the right to confront witnesses against him, the right to see any exculpatory evidence the state discovers, the right to be represented by counsel and the presumption of innocence. In felony cases, the state must prove beyond a reasonable doubt that the defendant is guilty.
No such safeguards are available to accused college students. As self-described feminist Judith Grossman discovered to her horror when her son was falsely accused of "non-consensual sex" by a former girlfriend, "the Department of Education's OCR has obliterated the presumption of innocence that is so foundational to our traditions of justice." Grossman recounted that her son was denied counsel, subjected to a two-hour long inquisition, refused the opportunity to present evidence (in the form of emails from the former girlfriend and other documents) and denied the opportunity to question witnesses against him. Thanks to Grossman's legal expertise and assistance, her son was eventually cleared. Other students are not so fortunate.
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