Prof. Peter F. Lake of Stetson University College of Law, who specializes in higher education law, said he thinks that Harvard will follow the example of other Ivy League schools that have lowered their standards of proof in sexual assault cases to "preponderance of the evidence," as mandated by the Department of Education's “Dear Colleague” letter.
This means that if a disciplinary panel finds there was a 50.1% likelihood that a student committed sexual assault, he will be found guilty.
Prof. Lake said he anticipates a legal battle about the constitutionality of the “preponderance of the evidence” standard, which he thinks may violate accused students’ constitutional right of due process. Lake added that he thinks the “Dear Colleague” letter puts institutions like Harvard in a difficult position of having to choose: “’Do I hold out and violate a federal mandate and face sanctions, or do I potentially violate the due process rights of students?’” Lake said. “That’s a heck of a choice.”
No, Prof. Lake, it is no choice at all. Harvard should be on the side of right, not on the side of political expediency. It shouldn't follow a suspect interpretation of the law that was not enacted by Congress (in fact, Congress recently removed the suspect interpretation from the VAWA reenactment bill), and that was not enacted as a formal administrative regulation -- there was no comment period to allow for all sides to be aired. It was promulgated in the still of the night.
Harvard should follow the Princeton example, which respects both the accused and the accuser when an allegation of sexual assault has been made. It has established separate, parallel procedures for (1) student discipline, and (2) Title IX grievances. Disciplinary proceedings, which involve investigations and adjudications of alleged student violations of University rules, require “clear and persuasive" evidence to find a violation. But Title IX grievances, which involve complaints against the University alleging that Princeton has failed to meet its obligations under federal law, require a lesser standard, a preponderance of the evidence.
Protecting the rights of the accused is vital to all civilized notions of fairness. Employing a stringent standard of proof to adjudicate guilt is critical to the fair treatment of the presumptively innocent. It is universally accepted that the "beyond a reasonable doubt" and "clear and convincing evidence" standards reduce the risk of punishing the presumptively innocent based on factual error. Sexual misconduct cases often come down to a battle of "he said/she said" evidence. The absence of overriding evidence to establish guilt or innocence is neither a valid nor a serious-minded justification for making it easier to punish the presumptively innocent. Just the opposite: it is a sound reason to be ever more vigilant of the possibility of punishing an innocent person for something he or she did not do.
By the same token, since it is often impossible to be reasonably certain about what happened in these cases, it is a moral imperative to also support the accuser if it's likely that she was assaulted. If the school finds by a preponderance of the evidence that the accuser's Title IX rights have been violated by the school, she should be treated as a victim. Such an adjudication might require the separation of the accuser and the accused as well as other protections for the accuser that may impose certain restrictions on the accused. But it would not include besmirching forever his reputation, and impeding his education and employment opportunities, by expelling him, based on a bare preponderance of the evidence.