Secretary of Education Betsy DeVos believes that college students accused of sexual misconduct in Title IX cases are owed a presumption of innocence, or non-responsibility, in keeping with a bedrock principle of Western justice. Attorneys general from 18 states and the District of Columbia disagree.
In a formal letter, these senior law-enforcement officials, who must overcome the presumption of innocence in their criminal prosecutions, asserted that the presumption of non-responsibility in campus proceedings “improperly tilts the process” in favor of the accused, and that it therefore should not be required of colleges, as the Department of Education recently suggested it should be in a proposed rule.
The proposed rule states that there is a “presumption” that the respondent is “not responsible” for the alleged sexual harassment. The presumption appears aimed at protecting respondents in a manner akin to the presumption of innocence in criminal cases. But the grievance procedures are non-criminal in nature, so a criminal presumption by another name is not appropriate. Relatedly, but more fundamentally, the presumption contradicts the regulation’s stated goal of promoting impartiality by inherently favoring the respondent’s denial over the complainant’s allegation.
Instead the allegation and the denial must be treated neutrally, as competing assertions of fact whose truth can only be determined after an investigation.
The problem would be even starker if any final regulation were to retain recipients’ ability to choose a “clear and convincing” evidence standard. The presumption of non-responsibility and the “clear and convincing” standard of evidence likely would, in practice, compound one another and raise an exceedingly high bar to any finding of responsibility for sexual harassment. Accordingly, there should be no presumption regarding the respondent’s responsibility.
That is the opinion of the highest-ranking law-enforcement officials in the jurisdictions of Pennsylvania; New Jersey; California; Delaware; Washington, D.C.; Maine; Hawaii; Maryland; Illinois; Minnesota; Iowa; Nevada; Kentucky; New Mexico; North Carolina; Oregon; Rhode Island; Vermont; and Washington.