The issuance of the “Dear Colleague” letter in 2011 triggered a race to the bottom for due process in the Ivy League. The contest began with Yale, which adopted a new sexual assault policy that prevented accused students from presenting evidence of innocence in “informal” complaints and redefined the concept beyond recognition in formal complaints. The race then moved to Cornell, whose policy was so unfriendly to due process that it aroused intense (but ignored) public opposition from the university’s law faculty. Brown was next, with administrators boasting about their desire to keep lawyers out. The latest entrant is Harvard, where students will be greeted by a new policy when they return to school this fall.
Harvard’s plan—which is disturbingly opaque in several key respects—contains many of the due process-unfriendly procedures that have come to dominate the post-“Dear Colleague” letter landscape. Students will be branded rapists based on a “preponderance-of-evidence” (50.01 percent) threshold, even as the accused student will receive virtually none of the protections available in civil litigation, which uses the same standard. In the college version of double jeopardy, accusers can appeal a not-guilty finding. And undergraduate students accused of sexual assault can’t use an attorney in the disciplinary hearing. But the Harvard policy goes beyond OCR’s requirements in multiple respects.
As long as parents keep on sending their boys to these schools, policies like these will continue to be in force – because what penalty for them to these colleges pay?