Arne Duncan vs. Fairness and the Rights of the Accused
The Education Department's Office for Civil Rights has indeed "imposed onerous demands" on colleges like Princeton University in how they investigate sexual harassment and rape ("Presumed Guilty at Princeton," Review & Outlook, Sept. 18). By micromanaging how colleges conduct such investigations and pressuring them to stack the deck against accused students, the Obama administration has made investigations more difficult, unfair, costly and legally risky.
The administration pressures colleges to find students guilty even when the facts are murky. That is at odds with court rulings in favor of schools and businesses that refuse to do so. In Swenson v. Potter (2001), an appeals court overturned a sexual-harassment verdict against an employer because it was reasonable for it not to discipline the accused in the face of conflicting evidence. In Knabe v. Boury Corp. (1997), an appeals court dismissed a harassment lawsuit against a firm that declined to punish a possibly guilty supervisor due to the absence of clear, "corroborating" evidence.
In light of these rulings, the Obama administration had no justification for forcing Princeton to drop its "clear and persuasive" evidence standard. Indeed, most Ivy League schools used a "clear and convincing evidence" standard before the administration ordered them to abolish it in 2011.