Leah Millis / Reuters

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.

Their reasoning:

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.

There is “no justification for limiting presumption of innocence to criminal cases,” Ken Pennington, a law professor who has published scholarship on the presumption of innocence, told me by email. “Presumption of innocence is not a procedural matter as American jurisprudence would have it, it is a right that is due to every human being.”

Nevertheless, it is frequently under attack. As crime or terrorism increases, popular support grows for stopping and frisking people on the street without probable cause or imprisoning them without charges or trial.

Even falling crime rates don’t eliminate this authoritarian impulse. “When you see these thugs being thrown into the back of a paddy wagon,” President Donald Trump told an audience of cops last year, “you just see them thrown in, rough, please don’t be too nice. When you guys put somebody in the car and you’re protecting their head, the way you put their hand over, like, don’t hit their head and they’ve just killed somebody. I said you can take the hand away, okay?”

The comparative legal scholar François Quintard-Morénas has written that “the principle that the accuser bears the burden of proving the guilt of the accused has its roots in antiquity. One of the oldest written codes of law, the Babylonian Code of Hammurabi, already embraced it.” It can be found in ancient Greece and Rome, in papal pronouncements from bygone centuries, in King Louis XVI’s court, in the Declaration of the Rights of Man, and in British common law.

Summed up today as “innocent until proven guilty,” the principle “has a dual dimension,” Quintard-Morénas wrote: “A rule of proof casting on the prosecution the burden of proving guilt, it is also a shield that prevents the infliction of punishment prior to conviction.”

He argues that France is committed to both dimensions, unlike the United States. “While France recently reinforced the presumption of innocence by elevating it to a personality right, Anglo-American jurisdictions tend to view the doctrine as a mere rule of proof without effect before trial,” Quintard-Morénas observed. “Denying that the presumption of innocence has any application before trial ultimately legitimizes the unnecessary indignities inflicted upon a growing number of persons accused of a crime. A revitalization of this cardinal principle of Anglo-American jurisprudence is needed at a time when the words ‘accused’ and ‘convict’ are increasingly synonymous.”

France’s Declaration of the Rights of Man states:

Every man being presumed innocent until he has been found guilty, if it shall be deemed absolutely necessary to arrest him, every kind of rigor used, not necessary to secure his person, ought to be severely repressed by the law.

The United States certainly falls short of that standard. The public defender Jeffrey D. Stein explains how America’s failure to treat people as innocent until proven guilty causes some defendants to plead guilty to crimes they didn’t commit. The failure to treat people as innocent until proven guilty also leads to defendants spending years in miserable jails before being tried for their alleged crimes.

Of course, American attorneys general do not admit that they are denying the presumption of innocence to criminal defendants if they hold them for months on end in dangerous, overcrowded jails. They act as though they understand the presumption of innocence in the narrower sense, as “a mere rule of proof.”

And that prevailing understanding makes it more noteworthy that they’re calling on a federal agency to promulgate rules that deny the presumption of innocence to college students who stand accused of sexual misconduct, explicitly arguing, in part, that the presumption of innocence and a high burden of proof make it too hard to arrive at findings of responsibility, as if the criminal-justice standard is unduly easy on the accused. “As legal concepts are undermined in the mind of the public, it filters through the system,” the criminal-defense attorney Scott Greenfield observes. “Won’t that be convenient for the AGs?”

Anthony Gray, the author of Presumption of Innocence in Peril: A Comparative Critical Perspective, concurred that the position articulated by the attorneys general is noteworthy. As he put it to me:

I accept that the proceedings may not be criminal in nature, in terms of the consequences. However, even in civil trials, it is incumbent upon the person alleging wrongdoing to prove the truth of their allegations, on the balance of probabilities/preponderance of the evidence standard. Thus, in my view it is entirely appropriate to base any investigation of alleged wrongdoing with an open mind, but with a view that the one alleging wrongdoing must prove the truth of their allegations. In other words, the presumption of non-responsibility is justified, in my view. Anything else is, in my view, dangerous.

James Whitman’s Origins of Reasonable Doubt is an excellent reference, though he was referring to the criminal context. However, he emphasised the long tradition that, when in doubt, the legal system would ‘do nothing’. It would assume all had acted lawfully, until proven otherwise. This seems the safest way.

It does mean that sometimes those who have committed wrongdoing are not brought to justice for what they have done, because the victim/survivor has insufficient evidence. This is very difficult for the victim and their family/friends/supporters. However, the legal system wrestled with this a long time ago. Knowing this was possible, it found the greater evil in an innocent person being unjustly condemned. Nothing I have seen changes the dynamics of this reckoning from long ago in our legal system, in my view.

Obviously the consequences for a person falsely accused in the situation below would not be criminal in nature, but might include being excluded from their studies/social opprobrium etc., which is very serious.

I forwarded that critique to the respective offices of the attorneys general. Some responded. A spokesperson for the Illinois attorney general’s office replied:

The multi-state comment is consistent with prior Department of Education guidance, and recommends that the preponderance of evidence standard be used.

In this context we are not clear on what additional guidance the “presumption” is meant to offer to schools, and some commentators have noted that its use is confusing in a civil context. Therefore, our comments conclude that the Dept. of Education’s rules should not mandate that schools include a presumption regarding responsibility in their grievance procedure. Given the lack of clarity about how this is meant to function, we felt this was the most prudent response.

At a time when “Believe accusers” is explicit dogma among activists in academia, the meaning of the guidance to presume innocence is hardly obscure. The rule would demand refraining from punishment unless and until a burden of proof is met. (What’s more, the Supreme Court has ruled that the presumption of innocence means something more than merely recognizing the burden of proof.)

A spokesperson for Pennsylvania’s attorney general wrote:

On the issue raised in the attorneys generals’ comments regarding the presumption of non-responsibility, it is critically important to note that this presumption is a higher standard reserved for criminal cases (i.e., innocent until proven guilty.) The government must overcome this burden to get a criminal conviction.

But in non-criminal case, like Title IX grievance hearings, the parties must approach the case on an equal playing field. The respondent (the accused) is not presumed responsible and the complainant (the alleged victim) is not presumed to be telling the truth. The 19 Attorneys General who signed the comments are not suggesting any lower standard for Title IX grievance hearings.

Rather, they are endorsing the standard widely used in all non-criminal proceedings: one that favors neither complainants nor respondents. Both parties should start any such grievance proceeding on a neutral and equal footing.

In fact, the parties in noncriminal cases in Pennsylvania and elsewhere do not approach cases “on an equal playing field.” Plaintiffs must meet a “preponderance of the evidence” burden of proof. Put another way, if the evidence is a toss-up, or 50-50, the respondent wins. The respondent is favored.

California Attorney General Xavier Becerra replied, through a spokesperson:

Title IX requires equal treatment for all students, period. Investigations in the name of equality must not be conducted based on presumptions of lies or innocence, but with an open mind and an impartial, comprehensive look at any situation in focus. The proposed Trump Administration rule politicizes this process and rolls back progress made to keep our students safe.

In criminal matters, in which a presumption of innocence rules, is the state presumed to be lying? Are comprehensive, impartial investigations impossible? Becerra has never expressed either of those beliefs.

When I ran these responses by Greenfield, the criminal-defense attorney, he said, “Much as people fetishize this ‘equal standing’ myth, one side is an accuser and the other an accused … They’re spewing rhetorical gibberish, as if the burden of proof being on the accuser, as it invariably must be, has no connection to the presumption of innocence. If the burden of proof isn’t met, can the accused be guilty anyway? If not, then it’s because the presumption of innocence applies.”

If the attorneys general succeed in persuading the Department of Education to strip the presumption of innocence from the due-process rights of accused college students, they will be undermining a bedrock of Western justice. And the consequences for accused persons are unlikely to stay confined to college campuses.

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