A national rights organization is expressing alarm that the Obama administration continues to pursue a requirement allowing sexual-assault cases on college and university campuses to be decided on a “preponderance” of evidence.
The standard is far lower than the standard of presumed innocent until shown guilty “beyond a reasonable doubt” as required in criminal courts.
The Foundation for Individual Rights in Education charges that the Department of Education is engaging in “bait-and-switch” tactics in a series of negotiating sessions intended to hammer out the fine print of the rules that flow from the 2013 reauthorization of the Violence Against Women Act.
FIRE said in a report today that the lower standards for a conviction, which are not acceptable in criminal courts, were pushed again at the second of three sessions for the rule-making talks.
“Several negotiators have been explicit about their desire to insert language requiring that campus judiciaries use the preponderance of the evidence standard when deciding sexual harassment and sexual assault cases,” warned FIRE Legislative and Policy Director Joe Cohn.
“This effort to circumvent congressional intent is galling – not only because doing so is clearly beyond the negotiators’ authority under the Negotiated Rulemaking Act, but also because Congress explicitly rejected requiring the ‘preponderance’ standard when passing VAWA reauthorization.”
One of the high-profile cases that illustrate the problems that result from the lower standard is the case of student Caleb Warner from the University of North Dakota in Grand Forks.
He 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 – during which Warner not only was banned from the UND campus but also from all college campuses in the state – for the university to agree to reconsider the conviction and clear his record.
The rule-making process is part of the effort to implement the VAWA, but FIRE said the Department of Education wants to impose the “preponderance” standard for guilt in criminal cases. That would mean individuals could be branded criminals simply because an adjudication process determines they are more likely guilty than not.
The foundation explained that participants in the rule-making were supposed to negotiate regulatory changes made by VAWA to campus safety and security reporting requirements in the Jeanne Clery Act, which mandates that colleges accepting federal funding publicly disclose information about campus crime.
FIRE said the Department of Education was trying to expand its reach by “addressing issues relating to campus discipline which cannot fairly be categorized as campus safety and reporting requirements.”
FIRE said early drafts of the law had language that would have required the “preponderance” standard, but that language intentionally was removed by Congress.
The draft rules, however, proposed by the bureaucracy, “circumvent congressional intent by including a provision that states, ‘an institution’s disciplinary proceedings are prompt, fair, and impartial if the proceedings … comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights.’”
“In other words,” said FIRE, “the draft regulations would effectively codify use of the preponderance of the evidence standard in campus hearings, despite such a requirement having been considered and rejected by Congress.”
The rulemakers also wanted to have a regulation that “would define any sexual encounter lacking ‘affirmative, unambiguous, and voluntary agreement’ as a reportable sexual offense.”
Cohn said the negotiated rule-making process does not empower negotiators to sneak into law substantive requirements that were debated and rejected by Congress.”
“Negotiated rule-makers were not elected by the public,” he said. “They must not replace Congress’ will with their own. Federal courts interpreting the Negotiated Rulemaking Act require that the negotiating committees stick only to the topics identified in, or that are the ‘logical outgrowth of,’ the notice.”
WND previously reported the controversy began April 4, 2001, when the Education Department issued a directive on campus sexual assault that stated, “A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.”
The directive outraged onlookers.
At that time, the group Stop Abusive and Violent Environments, or SAVE, called the department policy unconstitutional. SAVE issued a statement declaring the preponderance of evidence standard is “stripping the accused of the presumption of innocence and allowing students to be expelled without the benefit of legal counsel.”
SAVE has published a list of 13 organizations that have issued letters calling on the department to rescind its sexual assault directive, including the American Association of University Professors, the American Council of Trustees and Alumni, the National Association for Scholars, Tully Center for Free Speech at Syracuse University, eight civil rights scholars, Accuracy in Media, the Heartland Institute, the Alliance Defense Fund and Feminists for Free Expression.
SAVE has also published a list of 110 editorials criticizing the department policy. Authors include Michael Barone, Mona Charen, Phyllis Schlafly and Heather MacDonald.