Based on these guy's explanation the law in these matters is far from settled. I'd encourage every lawyer, actual or armchair to read through it. From the FIRE paper:
https://www.thefire.org/fire-guides...mpus-full-text/#__RefHeading__2500_2127946742
The 2011 OCR mandates are not supported by prior court decisions. From the FIRE paper:
OCR’s mandate is in tension with Supreme Court rulings like Goss v. Lopez (1975) and Addington v. Texas (1979). In Goss, as discussed earlier in this Guide, the Court held that when “a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” due process requires “precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” The Court made these observations about due process protections at the elementary and secondary school level, finding at least minimal requirements of due process necessary because disciplinary action “could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment.” Given the increased likelihood of much further-reaching negative consequences for a college student found guilty of sexual harassment or sexual violence in a campus judicial proceeding, greater protections are required, not lesser.
And in Addington, the Court—“mindful that the function of legal process is to minimize the risk of erroneous decisions”—noted that an intermediate standard of proof (i.e., the clear and convincing standard) might properly be used “in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant.” The Court arrived at this conclusion because the “interests at stake in those cases are deemed to be more substantial than mere loss of money,” and using the clear and convincing standard “reduce
the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof.” As FIRE pointed out in a May 2011 response to OCR’s “Dear Colleague” letter, college sexual assault hearings involve allegations of felony criminal conduct, and the interests implicated certainly go beyond the mere loss of money.
In the 2011 “Dear Colleague” letter, OCR argued that the preponderance of the evidence standard is appropriate for adjudicating sexual assault and sexual harassment claims because it is the same standard that federal courts use when deciding civil lawsuits, including civil rights lawsuits. But as FIRE and others have noted, the use of this low burden of proof in federal civil cases is counterbalanced by the many procedural safeguards provided to defendants in those cases—safeguards that aren’t present in campus cases. To provide just a few examples:
Defendants in civil trials have their hearings conducted by experienced and impartial judges.
Either party can ask a jury to determine findings of fact.
Either party may be represented by an attorney.
The rules of “discovery” allow each party to gather necessary evidence from the other side upon request.
Hearsay and other forms of unreliable evidence are typically excluded from the proceeding, and all testimony is given under sworn oath.
None of these protections are guaranteed in campus sexual assault hearings, rendering the comparison between the use of the preponderance of the evidence standard in civil court and campus hearings wholly inappropriate. And while defendants in civil lawsuits have the option to settle out of court and keep the matter private, students found guilty by campus tribunals have no such option, virtually guaranteeing that a negative outcome will have a lifelong effect.
