Leahy bill could lower burden of proof for campus sexual harassment

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Vermont Democratic Sen. Patrick Leahy’s reauthorization of the “Violence Against Women Act” has already begun to cause a bit of a stir — and he has yet to even introduce it.

Inserted into a recent draft of the bill is language that would force universities to lower the burden of proof to a “preponderance of evidence” in cases of domestic violence, dating violence, sexual assault, or stalking.

While the draft is just that — a draft — should it be finalized as is, the bill would codify a Department of Education directive by applying “the standard of proof recommended by the most recent Guidance issued by the Department of Education’s Office for Civil Rights.”

The April 4 guidance penned by the Department of Education’s Assistant Secretary for Civil Rights, Russlynn Ali, and sent to public universities across the country was met with harsh criticism from activists and university professors, specifically for its lowered burden of proof. Now it could become federal law.

“[I]n order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred),” Ali wrote in April. “The ‘clear and convincing’ standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof.”

To be sure, Leahy’s office noted that the actual bill to reauthorize VAWA has not been introduced and that the process of bringing this kind of legislation to the floor is a long one. Furthermore, a number of different drafts have been circulated, not just the one currently in the hands of interest groups.

According to the Education Department’s letter, the preponderance of evidence standard is already required under Title IX, which prohibits discrimination on the basis of sex in “educational environments.”

“Police investigations may be useful for fact-gathering; but because the standards for criminal investigations are different, police investigations or reports are not determinative of whether sexual harassment or violence violates Title IX,” the April 4 guidance reads. “Conduct may constitute unlawful sexual harassment under Title IX even if the police do not have sufficient evidence of a criminal violation. In addition, a criminal investigation into allegations of sexual violence does not relieve the school of its duty under Title IX to resolve complaints promptly and equitably.”

Hans Bader, special counsel for the Competitive Enterprise Institute and a former official in the Education Department’s Office for Civil Rights, explained that if Leahy introduces a draft with the April guidance, it will be an unprecedented move — allowing a federal agency to dictate a college’s standard of proof.

“It really is strange for a bill to delegate to a federal agency the power to lower due process protections and standards of proof. I believe that is unprecedented,” Bader told TheDC. “Under the Senate draft, the Education Department’s Office for Civil Rights could lower the standard of proof even further from its controversial ‘Dear Colleague’ letter to situations where the accused is likely innocent, but some doubt remains — like a ‘reasonable grounds’ or ‘probable cause’ standard.”

The self-described victim advocacy group Stop Abusive and Violent Environments (SAVE) has begun to sound the alarm on this — sending out a press release Thursday warning: “Leahy Bill Would Turn Every College Male into a Rape Suspect.”

“If Senator Leahy’s version of VAWA is passed, we can expect travesties of justice at every college in the nation,” warned SAVE spokesman Philip W. Cook. “The frequency with which false allegations of sexual assault are made — as many as half of all claims — makes it absolutely essential that students’ Constitutional due process rights are protected.”

While turning all college males into rape suspects is likely not the intent of the legislation, inserting the guidance into the bill would be sure to re-ignite the outcry that erupted as a result of the initial recommendation.

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