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Bringing back due process

ASSOCIATED PRESS

Bringing back due process

Last week, Education Secretary Betsy DeVos announced plans to reverse Obama-era policies on campus sexual assault under Title IX, the federal law on gender equality in higher education.

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Her decision is the right one.

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The Obama administration guidelines mandated a “preponderance of evidence” standard in sexual misconduct complaints, whereas previously most universities had required a standard of “clear and convincing evidence” to convict a student of sexual assault.

The “preponderance” standard meant that the adjudicators of such cases had to find the accused guilty if there was even slightly more than a 50-50 probability of guilt. And that does not meet long held American standards, or even older common law ones, of due process of law.

Moreover, as a practical matter, probability logic is an utterly inadequate means of deciding on something as complex and messy and consequential as a charge of rape.

Add political pressures from both the feds and the school to be tough on sexual assault, and many defendants lost the presumption of innocence. The repercussions are evident in the dozens of lawsuits filed by students expelled based on accusations that later turned out to be spurious.

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The Washington Post ran an article the day after Ms. DeVos’ speech titled, “Betsy DeVos’ Title IX interpretation is an attack on sexual assault survivors.” No it is not. It is a reassertion of the most fundamental principle of fairness in a legal proceeding: Due process.

The Atlantic magazine details several such miscarriages of justice in a three-part piece on the subject, launched on the day of Ms. DeVos’ announcement. “Many of the remedies that have been pushed on campus in recent years,” writes the author, Emily Yoffe, “are unjust to men, infantilize women, and ultimately undermine the legitimacy of the fight against sexual violence .”

They also undermine the rule of law. Campus rape is a very serious problem. Women are still being victimized and finding justice elusive. But justice for rape victims will not be achieved by suspending the Constitution. Justice and due process are one fabric, not two opposing strands.

First Published September 16, 2017, 1:46 p.m.

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