Ominous Development For The Accused On College Campuses

Duke Cheston writes for Carolina Journal about alarming new federal regulations for college disciplinary committees that should give pause to every person who cares about justice.

In April 2011, the Obama administration’s Office of Civil Rights sent a “Dear Colleague” letter to colleges across the country to explain newly created federal rules on dealing with sexual violence. A major change was to lower the burden of proof for colleges to punish students for sexual assault, which ranges from attempts of forced kissing up to and including rape. 

The new rules ostensibly come from a reinterpretation of Title IX of the Education Amendments of 1972, the law that prohibits colleges that receive federal funds from discriminating based on gender — best known for requiring women’s sports to be treated equally to men’s. Arguing that sexual assault is a form of gender discrimination, the OCR decreed a handful of new regulations. 

The most aggressive new interpretation was a mandate that colleges and universities lower the burden of proof when deciding cases of assault. The bar was dropped to the lowest possible standard, a “preponderance of evidence.” In other words, a college disciplinary committee merely needs to decide that an accused individual is more likely than not to have committed a crime. Those deciding the case must be only 50.1 percent sure of guilt. That standard is lower than the one used in criminal cases, which is “beyond a reasonable doubt,” and generally thought of in numeric terms as 98 percent certainty of guilt.