While criticism of the letter has focused mostly on speech, it also raises disturbing issues of fairness for students accused of misconduct. The government has reaffirmed its position, first expressed in 2011, that campus disciplinary proceedings for reports of sexual offenses must use the lowest legal standard, "preponderance of the evidence": If those adjudicating the charge believe there is more than a 50-50 chance that it is true, they must find the accused guilty. Previously, most colleges used the higher standard of "clear and convincing evidence."
The guidelines also mandate proper training about sexual violence for college officials and student jurors who handle such complaints—which, in practice, often amounts to indoctrination in presumption of guilt. At Stanford University, such a training program has used materials stating that one should be "very, very cautious in accepting a man's claim that he has been wrongly accused." Sexual assault can shatter lives, no doubt. But so can wrongful accusations, and sometimes in acquaintance or dating situations telling the two apart is wrenchingly difficult.
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