A bill that was designed to rectify gender discrimination tips the balance too far, putting accused men at an unfair disadvantage.
As Senate Republicans resist renewing the 1994 Violence Against Women Act (VAWA), raising questions about immigration fraud and Indian tribal courts, and Democrats indignantly declare their support of it, civil libertarians should take a hard look at some of the Act's deceptively innocuous provisions. Section 304, which governs the treatment of sexual violence charges on college and university campuses, requires that cases involving allegations of violence or stalking provide for "prompt and equitable investigation and resolution."
What's worrisome about this language? Will Creeley of the Foundation for Individual Rights in Education (FIRE) points out that "prompt and equitable" is a term of art under federal anti-discrimination law. It's construed by the Department of Education's Office for Civil Rights to require a low standard of proof ("preponderance of the evidence") in sexual misconduct cases.
This standard was explicitly mandated in an earlier version of the VAWA reauthorization bill, and it was adopted by the Department of Education in a controversial April 2011 directive. It is practically a presumption of guilt. As former DOE official Hans Bader has explained, it means that "if school thinks there is as little as a 50.001% chance that the accused is guilty, the accused must be disciplined." And, as I noted here, it means that the students may be suspended -- or expelled -- and exposed to civil and criminal liability on the basis of an inquiry that affords them little due process.