Thursday, August 25, 2011

Note to Russlyn Ali, assistant secretary for civil rights at the U.S. Department of Education

Paul Elam obtained her email address:

Dear Ms. Ali,

The goal of holding sexual offenders accountable for their misconduct is one that is universally shared by all civilized people. However, and most respectfully, the Department's April 4 directive unacceptably enhances the risk of holding innocent persons responsible for such offenses in furtherance of the objective to hold true offenders accountable.

There is, in fact, no basis to believe that tramping on the rights of the presumptively innocent will cure the problems that some schools have experienced in properly handling claims of sexual harassment. The one has nothing to do with the other. It is both possible and imperative to hold sexual offenders accountable while at the same time insuring that the rights of the presumptively innocent are protected.

Among other things, the April 4 directive requires schools to conduct disciplinary hearings for such alleged offenses using the preponderance of the evidence standard. This mandate unconscionably enhances the risk of holding the innocent responsible for wrongs they did not commit.

It is a hallmark of the American legal tradition, and a universally accepted tenet of our jurisprudence, that it is preferable to let the guilty go free rather than hold innocent persons responsible for wrongs they did not commit.

A student’s interest in obtaining a college degree, with all it entails, is of such weight and gravity, and the damage attendant to a determination that a student committed sexual assault or a similar offense is often so severe, that institutions of higher learning should have the right to decide for themselves whether to impose a standard of proof greater than a mere “preponderance of the evidence.”

Institutions of higher learning also should be permitted to allow the accused or his or her counsel to question the accuser directly. The integrity of the hearing process, and fundamental notions of fairness to the presumptively innocent, demand nothing less.