Should Guilt and Innocence Matter On Campus?

Jun 17, 2014 by

California date rape bill creates a consent muddle.

By Spencer Case

California politicians are aiming to entrench and expand an Obama-administration policy that has questionable implications for the rights of the accused.

Senate Bill 967 would require California universities whose students are receiving financial assistance to change their sexual-misconduct policies. Colleges would be required to follow a standard of “affirmative consent” from students engaging in sexual activities and follow a “preponderance of evidence” standard for disciplinary measures.

The bill, co-sponsored by California state senators Kevin De León (D., Los Angeles) and Hannah-Beth Jackson (D., Santa Barbara), is in part a reaction to the newly established White House Task Force to Protect Students from Sexual Assault, which encourages universities to take action against sexual misconduct. The bill passed the California senate by a resounding 27-to-4 vote May 29. It will be heard by the assembly judiciary committee Tuesday.

Supporters claim that its measures are needed to “flip” a status quo that makes it too difficult for victims to come forward, but critics allege that two provisions undermine the rights of the accused.

The preponderance standard essentially means that California universities will be forbidden to give accused students the benefit of the doubt that is accorded in criminal court proceedings. The standard is not only broader than the “beyond reasonable doubt” standard applied in criminal courts but also broader than the middle-bar standard of “clear and convincing evidence.” SB 967 would require schools to take disciplinary action against all students deemed more likely to have committed a sexual offense than not.

Claire Conlon, a press and legislative aide to De León, said that the preponderance standard is widely used in civil courts. Moreover, the preponderance standard is already in effect mandated nationwide by an April 4, 2011, “Dear colleagues” letter issued by the Department of Education Office for Civil Rights, which said any higher standard is inconsistent with Title IX of the Education Amendments of 1972.

Joseph Cohn, the legislative and policy director of Foundation for Individual Rights in Education (FIRE), noted that upon the dissemination of this letter, many universities lowered their standards from the intermediate “clear and convincing” standard to preponderance in order to avoid lawsuits for failing to comply with Title IX. “Preponderance” is now nearly ubiquitous.

The mandate for preponderance in SB 967 is significant because it makes the change a matter of state law, rather than compliance with the Department of Education’s interpretation of Title IX, Cohn said. As things now stand, the federal mandate for preponderance would disappear if a subsequent administration’s Department of Education interpreted Title IX differently. Universities can in principle challenge the current interpretation of Title IX in court, though the stakes are so high that none are likely to do so. If ratified, SB 967 would give the preponderance mandate an independent and a more permanent legal foundation.

Cohn, a critic of SB 967, said the law “further retrenches a bad outcome and bad policy.”

by Education News
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via Should Guilt and Innocence Matter On Campus? | National Review Online.

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