The National Review discusses Hans Bader's blog post on the Office for Civil Rights's letter to Senator James Lankfrord.
Much to the annoyance of the OCR, people who actually have the authority to make laws are starting to ask questions about that, among them Oklahoma Senator James Lankford. Lankford asked by what legal authority OCR imposed its will on colleges. How did it respond? In this post on Competitive Enterprise Institute’s blog, former OCR lawyer Hans Bader observes that it engaged in sheer evasion. Crucially with regard to the evidence standard, OCR came up with the absurd argument that because a college’s actions are subject to a preponderance of the evidence standard in civil litigation, that somehow means that the same standard should apply to disciplinary proceedings it conducts against students accused of sexual assault. Bader writes that OCR “simply assumed once again that since an institution’s actions are judges by a preponderance-of-evidence standard in civil litigation (as no one denies, and as Supreme Court precedent makes clear), that same burden of proof must be applied by a college to its students in internal college disciplinary proceedings that are not taking place in court.”
Read the full article at the National Review.