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Sen. Patrick Leahy, D-Vt.

A draft of a new law being circulated by Sen. Patrick Leahy, D-Vt., would cement a new standard of proof in sexual harassment cases on college campuses, replacing the “beyond a reasonable doubt” needed for conviction with only “a preponderance of the evidence.”

Leahy’s version of the Violence Against Women Reauthorization Act of 2011 would put into federal law the new standard of proof established by Assistant Secretary for Civil Rights Russlynn Ali of the Department of Education’s Office of Civil Rights, or OCR, in a “dear colleage letter” earlier this year.

Yet one college already using the OCR’s lesser burden of proof has found itself at the center of controversy. As the Wall Street Journal reported, the University of North Dakota found student Caleb Warner guilty of sexual assault by the “preponderance of the evidence” standard and banned him from campus for three years. But the college was later forced to vacate Warner’s suspension, when police issued a warrant for the arrest of his accuser … on charges of making a false report to law enforcement.

The Foundation for Individual Rights in Education, or FIRE, objects to the proposed provisions, warning they will not only
“dangerously tip the scales toward finding more innocent students guilty,” but also “sharply [reduce] due process protections” for students.

“Colleges have both a legal and a moral duty to address sexual assault on campus, but working to eliminate such crimes does not require colleges and universities to forsake fundamental student rights,” said Robert Shibley, FIRE’s senior vice president, in a statement. “FIRE asks Sen. Leahy and his colleagues to retract these ill-advised provisions, lest the newest generation of college students learn the wrong lesson about the crucial importance of due process.”

The draft bill effectively requires that colleges and universities receiving federal funding must employ the “preponderance of the evidence” standard – which FIRE calls “a 50.01 percent, ‘more likely than not’ evidentiary burden” – when adjudicating student complaints concerning sexual assault.

The law’s current draft would also grant accusers – not merely defendants – the right to appeal college disciplinary rulings, a provision FIRE calls a violation of the legal system’s “double jeopardy” protections, whereby someone accused of a crime cannot be tried again for the same charge once the original hearing has properly ended.

“For the same reasons of fundamental fairness that our criminal justice system does not allow the accused to face double jeopardy, Congress should not force college students to face a second hearing for the same charge,” FIRE said in a statement. “Further, allowing accusers to appeal a not-guilty finding amplifies the due process problems introduced by the preponderance of the evidence mandate.”

FIRE describes itself as is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom and rights of conscience at the nation’s colleges and universities.

FIRE is encouraging students and concerned citizens to contact their senators and ask them not to co-sponsor Leahy’s bill, should it move out of discussion.

“These provisions are fatally flawed and do not belong in federal law,” said FIRE President Greg Lukianoff. “Reducing protections for students who are accused of serious misconduct will not increase justice.”

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