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  • Writer's pictureJoanne Jacobs

Innocent till proven guilty returns to campus

The Education Department is “preparing new policies on campus sexual misconduct hat would bolster the rights of students accused of assault, harassment or rape, reduce liability for institutions of higher education and encourage schools to provide more support for victims,” reports Erica L. Green in the New York Times.

The accused will be considered innocent until proven guilty, under the proposed rules.  The case would have to be proved by “clear and convincing” evidence rather than the lower “preponderance of the evidence” standard required by an Obama administration’s 2011 guidance. Alleged victims and perpetrators would be able to “request evidence from each other and to cross-examine each other,” according to the Times

“Sexual harassment” would mean “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity.” That’s the Supreme Court’s definition, set in the 1999 Davis case.

The Obama administration used a broader definition, “unwelcome conduct of a sexual nature,” that includes “unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature,” notes Green.

Colleges would be allowed to use mediation to resolve disputes about whether sexual misconduct occurred.

Education Secretary Betsy DeVos rescinded the Obama administration’s 2011 letter on how to address sexual misconduct last year. “The notion that a school must diminish due process rights to better serve the ‘victim’ only creates more victims,” she said.

If adopted, “these measures would go a long way toward fixing the due process deficiencies that plagued the Obama administration’s guidance, writes Robby Soave in Reason. DeVos’ critics have misstated the facts about the new rules, he adds.

The Atlantic has a guide to how the new rules might play out.

There will be a public comment period — that’s a change from the Obama administration — before the rules are finalized.

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