Fair Means Fair; Evidence Must Count for Something

As a former Education Department lawyer, I applaud Harvey Silverglate’s criticism of the Education Department for undermining due process on campus (“Yes Means Yes—Except on Campus,” op-ed, July 15). Its demand that schools use the lowest standard of proof in sexual harassment cases flouts court rulings protecting schools from liability for harassment unless they are “deliberately indifferent” to it (Davis v. Monroe County Board of Education). Using a higher standard of proof, like “clear and convincing evidence” of guilt, is not “indifference” to harassment. Clear and convincing evidence is often required by collective bargaining agreements.

The Education Department wrongly demands that colleges not allow students to cross-examine their accusers. That will lead to erroneous findings of guilt. Cross-examination is needed to test whether conduct legally qualifies as sexual harassment, like whether it actually interfered with the complainant’s studies and made her environment “subjectively hostile.” In harassment lawsuits, cross-examination is deemed essential, and weak cases have been dismissed based on what plaintiffs admit on cross-examination.