Monday, October 29, 2012

A stinging indictment of the Dept. of Education's efforts to strip the presumptively innocent of their rights in sex cases

Jason Willick has written one of the most stinging indictments of the "Dear Colleague" letter, and one of the strongest defenses of the presumptively innocent, we've seen yet in the student newspaper of the University of California, Berkeley. The op-ed is here: We hope that readers will comment on the article and write to Jason to lend your support. Here are some excerpts:

"Prominent New York University law professor Richard Epstein questioned the constitutionality of the directive, declaring that 'the Department of Education is on a collision course with the Bill of Rights.' He took particular issue with the mandate that all schools use the weak 'preponderance of the evidence' standard in disciplinary hearings regarding sexual misconduct. Former Department of Education attorney Hans Bader noted that this standard of proof 'means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined,' and former American Civil Liberties Union board member Wendy Kaminer called it 'practically a presumption of guilt.'
. . . .
"It’s impossible to know whether cutting back on protections for the accused actually encourages victims to come forward, but it is clear that this approach can lead to intolerable injustices. Just ask Caleb Warner, who, as a student at the University of North Dakota, was found guilty  of sexual assault under the shameful 'preponderance of the evidence' standard. He was banned from campus and sentenced to three years of suspension. A year and a half later, he was exonerated because law enforcement determined that his accuser was lying and charged her with filing a false report.

"As the instances at Yale and Amherst have amply illustrated, there are unacceptable strains within the culture at American colleges that create an environment conducive to sexual violence. But restricting the civil liberties of students accused of sexual misconduct does nothing to address this. On the contrary, this approach merely formalizes the unhealthy perception that sexual assault is a 'different' type of crime that should be subject to a different set of rules and procedures — inviting more cultural baggage and stigma.

"As colleges around the country grapple with sexual misconduct issues in the wake of the Amherst scandal, they should not draw their inspiration from the Department of Education directive, which does violence to America’s tradition of civil liberties and due process. I am hopeful that the soul-searching brought about by Epifano’s courageous account of her experience at Amherst will give rise to serious ideas about how to improve colleges’ responses to sexual misconduct so that they can protect the rights of all of their students."