in April 2011, the U.S. Department of Education ordered all American colleges and universities to comply with certain new disciplinary procedures for students accused of sexual misconduct. The new policies were apparently designed to encourage victims of sexual harassment and assault to come forward — by dramatically weakening protections afforded to students accused of sexual misconduct in campus disciplinary hearings.
Prominent New York University law professor Richard Epstein questioned the constitutionality of the directive, declaring that “the Department of Education is on a collision course with the Bill of Rights.” He took particular issue with the mandate that all schools use the weak “preponderance of the evidence” standard in disciplinary hearings regarding sexual misconduct. Former Department of Education attorney Hans Bader noted that this standard of proof “means that if a school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined,” and former American Civil Liberties Union board member Wendy Kaminer called it “practically a presumption of guilt.”
The directive takes other steps to erode the protections for students accused of sexual misconduct: It provides that the alleged perpetrator cannot have the right to appeal unless his accuser can appeal as well, exposing the accused to double jeopardy. It also strongly recommends that the student who is accused of misconduct not be allowed to confront or cross-examine his accuser.