The Foundation for Individual Rights in Education (FIRE) has put out a scathing report and analysis on the Campus Sexual Violence Elimination (also known as “Campus SaVE”) Act that is up for consideration in both chambers of Congress. This act was introduced in these respective chambers by Democrats and though the name of the legislation may seem to protect the innocent, it does quite the opposite.
As legislators often do, the Campus SaVE Act imposes more federal regulations on higher education institutions in order to receive federal funding. According to FIRE, funding will become conditional on accepting some of these aspects of the Campus SaVE Act:
- Hearings for students accused of sexual offenses must use the “preponderance of evidence” standard.
- If an appeal of the verdict is permitted, both the accuser and the accused must be entitled to appeal.
- Colleges must hold “Education programs” which must be held for all students, faculty, and employees. These programs must include “the elements of healthy relationships and the right of individuals to live without the fear of becoming a victim of domestic violence, dating violence, sexual assault, or stalking,” “the definition of consent in reference to sexual activity,” “information about reporting such offenses” on or off campus, “bystander intervention,” and “risk reduction.”
- Colleges must provide other specific information to students who report that they have been the victims of sex offenses, and establish procedures to follow in such cases.
FIRE objects to two main parts of the Campus SaVE Act—the preponderance of evidence standard and allowing the accuser to appeal the verdict when permitted by the university. Regarding the preponderance of evidence, it is the American justice system’s “lowest evidentiary standard” that suggests that the accused could be found “more likely than not” guilty. Instead of the unequivocal “innocent until proven guilty” and “beyond a reasonable doubt,” one is considered guilty if evidence could possibly suggest guilt, even without hard proof. It means that the rights of due process of students are violated because of a low judicial evidence standard. In the past, the preponderance of evidence has been used where “society has a minimal concern with the outcome.” With sex-related offenses, society has a greater interest, and the Supreme Court has even “held that use of the preponderance of evidence standard is ‘inconsistent with due process.’” As evidenced in the Duke lacrosse team sex-related scandal some years ago, a preponderance of evidence is insufficient to both prove guilt and protect a student’s right to due process. The practice also “usurps institutional autonomy,” meaning that these institutions lose the independence to determine due process protections for students accused of sexual misconduct. Courts and universities should use the standard of “beyond a reasonable doubt” to determine guilt or innocence and preserve one’s “life, liberty, and pursuit of happiness” as the Declaration of Independence had declared many years ago.
Allowing the accuser to appeal goes against many judicial standards. If the accused has been cleared by the university and can be tried again, they would not be protected by the “double jeopardy” standard, whereby one cannot be tried again for the same crime once found not guilty. As detailed before, the low judicial nature of the preponderance of evidence standard places students at high risk of losing their future to baseless accusations that have already been proven false. Another important concern of allowing the accuser to appeal is that public opinion could sway the appeals process and change the verdict the second time, blatantly violating due process. FIRE’s last concern is that some campuses place one person in charge of overseeing these types of cases. With this blanket rule of allowing the accuser to appeal, one person could have little procedural oversight or accountability but could unfairly decide the future of a student by rehearing a case.
The FIRE report reveals that the Department of Education’s Office for Civil Rights (OCR) released new regulations and was timed closely with the Senate bill, showing that a student’s right to due process is being threatened from a coordinated government effort. The report then closes with a few modern examples of the abuses of the preponderance of evidence standard, as advocated by the Campus SaVE Act, where one student was found guilty by the school but not by the police (and whose accuser still has a warrant for her arrest for lying to the local police). This is one worrisome trend, among many, in academia.
Spencer Irvine is a research assistant at Accuracy in Academia.
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