Monday, November 26, 2012

Prof: In light of the 'Dear Colleague' letter, Duke lacrosse players likely would be expelled if it happened today

Here's an excerpt from Prof. Dan Subotnik's great, no-holds-barred article on the Duke Lacrosse case, "The Duke Rape Case Five Years Later: Lessons for the Academy, the Media, and the Criminal Justice System" 45 Akron L. Rev 883, 919-20 (2012):

. . . in April 2011, the U.S. Department of Education, Office of Civil Rights announced guidelines for the many hundreds of colleges and universities it regulates. Under these rules, which distinguish sexual assault from other types of criminal behavior, schools now have to judge students accused of sexual harassment or sexual assault based on a "preponderance of the evidence" instead of "clear and convincing evidence," which is apparently the standard that a number of schools currently apply.

 More malefactors will be expelled from schools under this standard, and that is to the good; but would the Duke accused have had any chance of justice under a lower evidentiary standard for complainants that trumpeted the special heinousness of sexual assault?