Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings

tenchineuro · 2018-09-30T15:18:49+00:00

On the question of cross-examination, this is the latest in a growing line of cases holding that cross-examination is essential to due process when credibility is at issue. Earlier this month, the U.S. Court of Appeals for the Sixth Circuit ruled that “[I]f a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.”

On the second point — the evidentiary standard — this opinion is remarkable. It is, to my knowledge, the first federal court decision explicitly stating that “preponderance of the evidence” is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of “a permanent notation” on the plaintiff’s transcript in reaching this finding. FIRE has long argued that “[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,” and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.

Wait, you can be put on a sex offender registry by a college tribunal?

Otherwise, it's great to see some good news for a change.

Title	Due process legal update: Judge holds that ‘preponderance of evidence’ standard may be unconstitutional in campus sexual misconduct proceedings
Author	Imnotmrabut
Upvotes	44
Comments	3
Date	September 30, 2018 12:19 PM UTC (5 years ago)
Subreddit	Posted in /r/MensRights
Original Link	https://old.reddit.com/r/MensRights/comments/9k5yb9/due_process_legal_update_judge_holds_that/
Archive Link	https://theredarchive.com/r/MensRights/due-process-legal-update-judge-holds-that.893011 https://theredarchive.com/post/893011