Proof and Campus Rape
To the Editor:
Re “New Rules to Address Campus Rape” (editorial, June 30):
It is unfortunate that the federal government now seeks to restrict the due process rights of students accused of sexual assault or harassment. As your editorial notes, “the Department of Education recommended that universities use ‘preponderance of the evidence’ as the standard of proof instead of the higher ‘clear and convincing’ standard.” But that higher standard protected due process.
As a Yale Law Journal article noted in 1987, “Courts, universities and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.”
The White House Task Force you cite demanded that students “not be allowed to personally cross-examine each other.” That contradicts court rulings like Donohue v. Baker (1997), which concluded that cross-examination must be allowed in certain campus disciplinary hearings.