Massachusetts lawmakers passed legislation through the state senate earlier this month that would codify some harmful elements of the Obama-era Education Department’s federal guidelines on investigating sexual assault.
The bill directs institutions of higher education to include in their procedures for investigating “dating violence, domestic violence, sexual assault or stalking” a statement clearly indicating “the use of a preponderance-of-the-evidence standard to resolve complaints.”
That standard was one of the most controversial aspects of the Obama-era guidelines rescinded by Education Secretary Betsy DeVos earlier this fall, a decision that was applauded by many observers on both sides of the aisle.
In her highly-lauded September series on campus sexual assault for The Atlantic, Emily Yoffe documented how “[t]he preponderance-of-evidence standard demanded by OCR requires schools to make life-altering decisions even when there is great doubt.” As Yoffe noted, that standard has proved to be so problematic, a handful of groups and organizations, including the American Association of University Professors and the American College of Trial Lawyers, have publicly stated schools should be allowed to use at least the higher “clear and convincing” standard of guilt.
The preponderance standard means accused students can be found guilty in cases where adjudicators find a 50.1 percent likelihood of guilt.
Yoffe reported roughly 170 accused students have filed lawsuits in the six years since the Obama Education Department issued that directive in a 2011 “Dear Colleague” letter, alleging they were subject to unfair treatment by their schools.
The bill has other problems as well, including provisions allowing accusers to report assaults anonymously. Over at The Federalist, Ashe Schow has a good rundown of other flaws in the legislation.
For politicians in Massachusetts, the optics of voting against or lobbying to change legislation aimed at protecting victims of sexual assault won’t be politically expedient. But it will be the right thing to do. Lawmakers must reflect seriously on the damage done by those policies on the national stage — which is acknowledged by observers across the ideological spectrum — before voting to codify them in their own state.
