To prove someone’s guilt through a preponderance of evidence, the accuser must convince a judge or jury that there is a greater than 50 percent chance that their claims are true. From a legal perspective, this sets a much lower bar for convicting people accused of crimes and misconduct.
The Obama-era guidelines also instructed campuses to prohibit any cross-examinations of the accuser in order to avoid causing any further trauma. However, while this gave stronger protections to the accuser, it downplayed the importance of due process for the accused—who stand to lose a great deal even if the allegations turn out to be false.
Under the Department of Education’s new proposed guidelines, the preponderance of evidence standard can still be used. But if the new proposed guidelines are adopted, campuses are also free to use the stricter standard of “clear and convincing evidence,” which is one step below beyond a reasonable doubt. Clear and convincing proof means that the evidence provided by the accuser has a higher probability of being true than it does of being false. The new rules would also mandate that the accuser be subject to cross-examination.