New Federal Sexual-Harassment Rules Raise Alarms

by Nathan Harden

Back in June, I mentioned the new federal guidelines in effect for how universities handle sexual-harassment cases. The new rules, handed down by the Department of Education’s Office of Civil Rights (OCR), lowered the burden of proof necessary for taking disciplinary action. Critics argue that the falsely accused may suffer unfairly under the lower standards. The Daily Caller reports the details:

The Office of Civil Rights now requires all universities which receive federal funding to use a “preponderance of evidence” standard in grievance procedures involving sexual misconduct, rather than the more strict “clear and convincing” evidence standard. . . .

Advocates of the new rules say universities have not devoted enough resources and attention to stopping sexual assaults. The AAUP countered that lower standards could damage academic freedom and due-process rights for university faculty. . . .

The change has also drawn the ire of FIRE — Freedom for Individual Rights in Education — a group that advocates for civil liberties on college campuses. FIRE vice president Robert Shibley said the lower guilt standard, the same one used in civil court cases, will lead to problems for the accused.

“It opens the door to the possibility of a lot of false convictions, and we already have examples of that,” Shibley said.

Considering the fact that faculty members can lose their jobs and professional credibility in such cases, the lower standards do seem potentially problematic. Unfortunately, the evidence in sexual-harassment cases often comes down to one person’s word against another. That makes it hard for a victim to prove his or her case. For this reason, many victims are reluctant to come forward.

On the other hand, the “his word against hers” nature of many of these cases makes it equally hard for the falsely accused to clear their names. Oftentimes, simply being accused is damaging enough to constitute a kind of punishment by itself — in terms of public disgrace — and it doesn’t matter whether the accusation is true.

No easy answers here. But, in the interest of justice, shouldn’t we err on the side of presuming innocence until clear evidence proves otherwise?

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