As student-conduct administrators nationwide know all too well, the Department of Education's Office for Civil Rights required in a letter issued last April that institutions adopt our judiciary's lowest standard of proof—the "preponderance of evidence" standard—for use in campus sexual-misconduct hearings, which handle allegations ranging from sexual harassment to sexual assault and rape.
Under the new standard, if it is determined that an accuser's claims are a fraction of a percent more likely to be true than false, the accused may be subjected to discipline, including expulsion.
Unfortunately for students' rights, a long line of institutions have adopted this low standard under federal pressure. In fact, a review of policies at 198 of the colleges ranked this year by U.S. News & World Report reveals that 30 institutions—including Yale University, Stanford University, and the University of Virginia—have changed their standards of proof following OCR's mandate.
That's too bad, because colleges should be free to grant their students more robust due-process rights—and the federal government should not stand in their way.
Previous instructions from the Office for Civil Rights granted universities far greater flexibility. Indeed, OCR's 2001 Revised Sexual Harassment Guidance noted that "procedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, state or local legal requirements, and past experience."
Now OCR and its defenders are arguing that the preponderance-of-evidence standard is appropriate for adjudicating campus sexual-assault and sexual-harassment claims because it is the same standard that federal courts use when deciding civil lawsuits, including civil-rights lawsuits. Comparing college disciplinary hearings to civil lawsuits may be an attractive analogy, but is it accurate?
While it is true that most civil cases in federal court are decided under the preponderance standard, due process requires that this low burden of proof be offset by procedural safeguards—lots of them.
For example, to ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party's request, facts are determined by a jury of one's peers. The parties have the right to representation by counsel, and a mandatory process of "discovery" ensures that all relevant evidence will be made available if the opposing party asks for it.
And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.
So which of those procedural protections are guaranteed in college disciplinary hearings? None. The procedural safeguards used at most colleges are embarrassingly minimal.
Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it's a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.
Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don't apply. Hearsay and even irrelevant "evidence" are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.
Without any of the safeguards designed to increase the reliability and fairness of civil trials, the risk of erroneous findings of guilt increases substantially, especially when a fact finder is asked to decide only if it is merely 50.01 percent more likely that a sexual assault occurred. The absence of the protections listed above makes the preponderance standard inappropriate and renders the comparison of campus sexual-misconduct hearings to civil suits in federal court inexact.
If anything, because there are so few procedural protections in place during sexual-misconduct hearings on campuses, the burden of proof should be higher, to offset the increased risk of error. After all, a guilty finding for sexual misconduct on campus may result in life- and career-altering punishment. And mistakes have been made. In one case, the University of North Dakota banned a student from the institution for sexual assault despite the fact that the Grand Forks police refused to charge him with a crime and in fact charged his accuser with making a false claim. The university eventually reversed its ruling, but only after it was faced with significant public pressure.
One other important feature distinguishes civil lawsuits from campus proceedings: Civil suits can be settled for money and kept confidential. Yet students accused of sexual misconduct cannot simply settle the case for money and stay in school. Preponderance advocates should ask themselves why this is so. If the answer is that campus sexual misconduct is more like a crime (with a victim and alleged perpetrator) than a civil dispute (with a plaintiff and defendant)—as is certainly the case—then why is the preponderance standard sufficient for charges of sexual misconduct on campus?
Given the laundry list of procedural safeguards present in civil trials but absent in college sexual misconduct hearings, and the difference between civil disputes and sexual misconduct, is it fair to argue that simply because the preponderance standard is used by federal courts deciding civil-rights cases, it must therefore be fair to use in college sexual-misconduct hearings? Only if you think it's fair to compare apples to oranges—and only if you are untroubled by expulsions of innocent students.