LEGAL INTELLIGENCER: Repeal The “Dear Colleague” Letter On Sexual Assault.

In the name of the wholly laudable goal of combating sexual assaults, the DOE placed schools in the precarious position of adjudicating allegedly criminal acts in their discipline systems, with the threat of potentially ruinous sanctions, should the schools’ efforts fall short. Recognizing that at least some accusers have historically been mistreated, the department insisted on changes in how the system was to run, but those changes have gone too far and now undercut fundamental rights of those accused of wrongdoing. For instance, the DOE demanded that colleges apply a “preponderance of the evidence” standard in determining whether a sexual assault complaint has merit, and prohibited both the “clear and convincing” and “beyond a reasonable doubt” thresholds. Further, the department dictated that schools should prohibit the accused from cross-examining the accuser, warning that doing so could create a hostile environment—effectively taking the position that everyone accused is guilty, and that having the temerity to question the accuser would compound the trauma.

We can all agree that people who commit crimes should be brought to justice. At the same time, most of us share a profound commitment to affording those accused of a crime with certain rights—to know the accusation, to confront the accuser, to cross-examine witnesses and to due process. We know that each of these rights means that an accusation is less likely to result in a conviction. Yet no serious person proposes doing away with those basic rights, solely for the sake of increasing the conviction rate. If a mere accusation is sufficient to mete out punishment, we know how this story ends.

The damage is not confined to those who are falsely accused, nor to those whose valid complaints have been called into question by others crying “wolf.” Even open discussion of the topic has become unacceptable to the zealots driving this initiative.

Yes. Though if some Evil Right Winger were trying to cause higher education to destroy itself, he could hardly have done better than this rule.