So Much For Innocent Until Proven Guilty


Hans Bader notes a disturbing trend on college campuses in a post at the Competitive Enterprise Institute. He begins by pointing out a new law in a liberal part of Spain under which a person “accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” You wouldn’t think that something happening in Spain would be any of our concern, but this sort of thing is taking place on campuses around the United States with increasing frequency.

In America, the Education Department is moving in the same direction, although it is doing so without any legislative authorization. Citing federal laws such as Title IX and Title VI of the Civil Rights Act, the Education Department’s Office for Civil Rights, where I used to work, is issuing “Dear Colleague” letters demanding that schoolsrestrict due process and stop being evenhanded in discipline. Its demands are not only reducing the due process rights of accused people, but also are undermining fairness and accuracy in adjudications (anderodingfreespeech as well).

In the United States, some colleges now operate a two-track system, in terms of the burden of proof. In ordinary offenses, they apply a clear-and-convincing evidence standard, and allow the accused protections like prior disclosure of the evidence against them (and sometimes allow the accused to personally cross-examine the complainant if the accused cannot afford counsel). But in cases of alleged sexual harassment, assault, and gender-related offenses, they apply a meager “preponderance of the evidence” standard, bar any cross-examination by the accused, and often deny the accused meaningful access to the evidence against him needed to prepare a defense.

The Education Department has caused this inequitable result, through a misinterpretation of the federal sex discrimination law Title IX.

Read the whole thing. This is cause for concern for anyone with kids who are in college, or plan to go to college in the future. This sort of thing usually gets much worse before it gets better.