Secretary of Education Betsy DeVos recently rescinded a policy letter issued by President Barack Obama's administration setting the legal standard to be used by colleges and universities in investigating and punishing allegations of on-campus sexual misconduct.
The policy was issued in 2011 and updated in 2014. DeVos worries the mandate that a school "must use a preponderance-of-the-evidence (i.e., more likely than not) standard in any Title IX proceedings, including any fact-finding and hearings" fails to provide adequate protection for the accused.
In a Sept. 22 article, the Boulder Daily Camera's Elizabeth Hernandez wrote that the University of Colorado stood behind its practice, which mirrors the Obama policy.
"There will be no immediate changes to either our sexual misconduct policy," said CU's Office of Institutional Equity and Compliance executive director Valerie Simons.
In criminal law a defendant enjoys the presumption of innocence. Guilt must be proven "beyond a reasonable doubt."
The criminal standard does not apply to CU students accused of sexual misconduct, which can include simply not obtaining "clear, knowing and voluntary consent prior to and during sexual activity."
CU's policy says: "Consent can be given by word or action, but non-verbal consent is not as clear as talking about what you want sexually and what you don't. Consent must be active; silence by itself cannot be interpreted as consent."
Secretary DeVos' guidance proposes a "clear and convincing evidence" standard. The new guidance says: "The 2011 and 2014 guidance documents may have been well-intentioned, but those documents have led to the deprivation of rights for many students."
The presumption of innocence is also affected by CU's policy, which permits "excluding a respondent from parts of campus or all of campus" during the investigation. The policy goes on to say "any adjustments made will be designed to minimize the burden on the complainant's educational program."
The policy presumes the accusation is true and sanctions on the accused can be levied even before evidence has been fully collected or evaluated. The mere filing of a complaint might result in the removal of a suspect from classes and ban the student from campus.
The practice creates a system ripe for miscarriages of justice that can destroy the future of a falsely accused student.
Victim's advocates dismiss the possibility that complainants might misrepresent facts for any number of reasons.
Hernandez writes, "Joanne Belknap, a CU professor who has researched and designed courses on gendered violence and sexual harassment, said research and reality does not support the idea of the accused being treated unfairly in campus sexual assault cases. "I'm sure we can all find examples where certain people were treated unfairly," Belknap said. "But this whole idea that somehow all these men on campus are at risk of being charged with something they didn't do is such a gross exaggeration..."
That may be true, but false reports do occur. When that happens, the accused faces a lifetime of negative consequences including the possibility of not being able to finish college or obtain a job.
CU administration is setting the standard of excellence in public higher education, and the university can do better than this in regard to sexual misconduct complaints.
CU should do the work required to balance the rights of complainants with the rights of the accused. A standard of proof that can be tilted against the accused by a single quantum of false evidence is too low to be fair.
Setting the standard to "clear and convincing," means "the evidence is highly and substantially more likely to be true than untrue." That standard would protect victims and decrease the likelihood of a damaging miscarriage of justice that could needlessly ruin a student's life.