As detailed by the Foundation for Individual Rights in Education in its letter to the Office of Civil Rights, the April 4 Dear Colleague Letter sent by the OCR out to colleges last year mandates that schools lower their burden of proof to a preponderance of the evidence when adjudicating matters of sexual harassment and assault. The OCR justifies this mandate by citing use of the preponderance standard in civil rights cases presided over by SCOTUS to determine whether discrimination took place . This fails to note however, that:
The Supreme Court has observed […] reliance on the preponderance of the evidence standard in civil litigation is due in significant part to the fact that “[t]he typical civil case involv[es] a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion.” 
This particular observance of the court is not applicable in matters as serious as those regarding sexual misconduct. Additionally, the Dear Colleague Letter (abbreviated hereafter to DCL) fails to note that:
When determining whether a student has in fact committed sexual harassment or sexual violence against another student, the college or university judicial body conducting the proceeding is engaged in precisely the “quasi-criminal” adjudication for which the Supreme Court has deemed the “clear and convincing” standard to be appropriate. The stakes for the accused are extremely high; the permanent, severely negative consequences of a guilty finding will follow the student for the rest of his or her life. As a result, a campus judicial hearing charged with deciding between guilt or innocence much more closely resembles a criminal proceeding than OCR’s determinations of institutional compliance. 
In the educational context, the Supreme Court of the United States has made clear 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.” Goss v. Lopez, 419 U.S. 565, 574, 580 (1975) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). 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.” Id. at 575. The increased likelihood of much further-reaching negative consequences for a college student found guilty of sexual assault in a campus judicial proceeding means that greater protections are required, not lesser. 
Because of these statements, it seems that OCR’s own justifications for the lower burden of proof are inconsistent with the actual reasoning of the Court. This incongruity is both worrisome and perplexing, given the gravity of the policy changes undertaken. Further,
The lower standard of proof serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Insisting that the preponderance of the evidence standard be used in hearing sexual violence claims turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard. Under the preponderance of the evidence standard, the burden of proof may be satisfied by little more than a hunch. Accordingly, no matter the result reached by the campus judiciary, both the accuser and the accused are denied the necessary comfort of knowing that the verdict reached is accurate, trustworthy, and fair. The lack of faith in the judicial process that such uncertainty will likely engender should be of great concern to OCR and recipient institutions. 
Finally, we find the OCR’s entire justification to be inconsistent with the legal application of Title IX generally, because only a school can be sued under Title IX, not individual students. In the words of Hans Bader, a former attorney for the OCR,
The Education Department’s position is based on a misunderstanding of who is subject to Title IX, the federal law banning schools from committing sex discrimination. Title IX’s requirements apply to schools, not individual students.
The Education Department’s reasoning for imposing a low “preponderance” standard on school disciplinary proceedings is that this “is the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court. Therefore, it claims, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence.’”
It is completely true, and completely irrelevant, that the preponderance of the evidence standard applies in lawsuits in general, as well as civil-rights cases. But that burden of proof applies to whether the school violated Title IX by behaving inappropriately, not whetherstudents or staff engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals. (See, e.g., Smith v. Metropolitan School District (1997).) Moreover, Students “are not agents of the school,” so their actions don’t count as the actions of the school. 
This possibility, that their reasoning is fully based in a “misunderstanding” of who Title IX applies to, makes any potential negative effect of forcing the preponderance standard far more troubling. The OCR’s continued silence on the issue only further emphasizes the gravity of these concerns.
Even giving the benefit of the doubt to the suspect legal reasoning of the OCR, our concern is that lowering the burden of proof does not serve to adequately address issues that survivor’s advocates have with the process colleges use to deal with allegations of sexual assault. Although using the preponderance standard may increase the number of decisions awarded in favor of complainants, the degree to which this change undermines faith in the entire process is highly discouraging to advocates for survivors’ rights. Particularly in light of the aforementioned concerns regarding due process, we are left strongly questioning the legality, and particularly the logic, of the changes.
We worry, in part, that the changes have more to do with the colleges’ concern with Title IX lawsuits than with choosing the best policy to reduce sexual harassment and violence experienced by students. This is a serious possibility; Brett Sokolow, managing partner of the National Center for Higher Education Risk Management refers to the response of colleges to Title IX lawsuits as:
[…] not hysteria, that’s not the right word — but nearly that. […] It’s such a fear-based reaction that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX. 
All students, faculty, and concerned parents should hope that the process by which colleges make policy decisions is not fear-based as Mr. Sokolow suggests. At the least, colleges must examine and challenge the threat the current policy implementation represents to due process in these cases.
It is important to recognize that choosing college policy is not a zero-sum game between the rights of survivors and the rights those who are accused of sexual misconduct. It is no game at all, and both colleges and the OCR need to be informed that using a preponderance of the evidence as the burden of proof for violations of student codes of conduct does not actually benefit survivors of sexual assault. In its own words, FIRE notes (emphasis added):
Lowering the standard of proof does not benefit victims or result in “more justice”—it simply creates greater room for human error and bias to infect the process, reducing people’s confidence in the outcome of proceedings. If, in an effort to avoid liability, university judiciaries categorize every drunken or regrettable sexual encounter as sexual assault, this dangerously trivializes actual cases of sexual assault and rape, to the great detriment of victims everywhere.
That is not to say that those concerned with fairness and truth are without recourse. Although colleges may fear challenging the OCR letter, it is imperative that faculty and students stand up to question and challenge these decisions. 
We strongly agree that those concerned with fairness and truth are not without recourse, and ask that colleges justify policy choices we believe endanger students without helping their intended beneficiaries.
Sexual misconduct and harassment are serious issues, and it is imperative that we take all allegations seriously and work proactively to protect possible survivors. This does not mean that we should respond irrationally or without regard to a history of jurisprudence which asserts that certain protections are necessary to maintain the presumption of innocence in cases where “a person’s good name, reputation, honor, or integrity [are] at stake.”  We support a number of the OCR’s new guidelines, because they make these college judiciary systems more just overall; however, we believe mandating a preponderance of the evidence standard in these cases as fails to make the system more just.
The report cited by Assistant Secretary Ali, authored by the Center for Public Integrity on the issue of Sexual Assault on Campus, notes multiple structural and procedural issues which have prevented many survivors of sexual assault on college campuses from receiving anything resembling justice. These issues range from pressure by school officials not to report, to delayed or incomplete investigations, to the weak sanctions sometimes levied even against students found responsible for the school’s most heinous offenses. Yet of the issues brought up by their thorough research, it doesn’t seem that any are compellingly addressed by forcing schools to lower their burden of proof.
Specifically in their article detailing the barriers which curb reporting, the Center notes as issues the failures of administrators in the treatment and resources/information provided to complainants as well as a culture of silence on the part of colleges. In a section examining the low percentage of on-campus resolutions reached out of the total number of reported cases, they specifically note that most were dismissed before the judiciary stage, with more than half dismissed at the survivor’s own request. If this is the case, we struggle to see where changing the burden of proof employed by the judiciary remedies a problem which concerns the judicial stage not being reached often enough. While some of these dismissals may have resulted from the specific evidentiary standard required to proceed to a judicial hearing, it seems to speak mostly to the manner in which administrators determine which cases proceed through each college’s judicial process and not to the process itself.
With justice being delegated such a minuscule margin for error, any mistakes the college makes administratively represent a grave threat to students’ ability to trust the judicial process. In this vein, we wish to point out a case at Stanford University, the center of a rather troubling controversy just under a year ago.
The training materials for Stanford’s “Dean’s Alternative Review Process,” which handles sexual harassment and misconduct cases, also inform student jurors that they should be “very, very cautious in accepting a man’s claim that he has been wrongly accused of abuse or violence,” claiming that “[t]he great majority of allegations of abuse—though not all—are substantially accurate,” and that “an abuser almost never ‘seems like the type.'”
The material provided to student jurors, much of which comes from a book titled Why Does He Do That: Inside the Minds of Angry and Controlling Men, is generally directed not at ensuring a fair trial for both the accuser and the accused, but at ensuring that accused men are presumed guilty.
“Imagine being a male Stanford student at your sexual assault hearing,” said FIRE Senior Vice President Robert Shibley. “The ‘jury’ has been told that denying the charges is a sign of guilt, and so is being persuasive and logical. They’ve been told that accusers almost never lie, that they need to be extra suspicious of men who don’t seem like they’d commit rape, and that being neutral is taking the side of abusers. Additionally, the Department of Education has mandated that a sliver of certainty is all that is required to find you guilty. Would any Stanford administrator volunteer to be tried for sexual assault in a real court under the same conditions that they have imposed on their students?” 
As demonstrated in the Stanford case, during these actual judicial hearings we view this lowest burden of proof as uniquely susceptible to the slightest bias.
Without any guidance, a given school’s training procedures might be anywhere from excellent to deeply flawed. But any uncertainty further undercuts confidence in the fairness of the process, something colleges can hardly afford to do when already using the lowest possible evidentiary standard.
Returning to the DCL, the center also cites concerns over the adequacy of punishment as a strong contributor to why survivors don’t come forward, but we worry that lowering the burden of proof does not actually address the fashion in which colleges assign punishments to specific charges. In the center’s research, the complaints of survivors often revolved around the lax punishment given to offenders when the offenders were found responsible under existing judicial processes, but lowering the burden of proof lends itself only to a greater number of guilty verdicts paired with the same unsatisfactory sanctions.
Princeton University employs an alternate model, which addresses the OCR’s concerns about a college’s obligations to complainants without compromising the respondent’s right to due process. Princeton has maintained much of their policy around grievance / disciplinary procedures, while introducing a parallel process to address Title IX complaints and comply with the DCL.
The burden of proof applied to all violations of student code is “convincing evidence” (comparable to the “clear and convincing” standard), while the burden of proof to determine whether the complainant’s rights under Title IX were violated is “a preponderance of the evidence.” [Their policy is described in detail here.] [And their disciplinary procedures (which apply to all serious offenses) here.]
Princeton doesn’t read it that way. It has established separate, parallel procedures for (1) student discipline, and (2) Title IX grievances. Disciplinary proceedings, which involve investigations and adjudications of alleged student violations of University rules, require “clear and persuasive” evidence to find a violation. But Title IX grievances, which involve complaints against the University alleging that Princeton has failed to meet its obligations under federal law, require a lesser standard, a preponderance of the evidence.
What this means is that Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering a duty to provide support for the accuser.
Princeton’s Provost Christopher Eisgruber described the University’s procedures as “fully compliant with Title IX,” noting that the OCR letter explains that colleges and universities “have options about how to address Title IX grievances related to sexual misconduct.” Provost Eisgruber said the policy is the best way to balance protecting both the Title IX and due process rights of students. “There are in these kinds of proceedings two different kinds of mistakes that can be made. You have to protect against both of them.” 
Importantly, as advocates for an approach at least as responsible as Princeton’s, we note:
[Assistant Secretary for Civil Rights Russlynn] Ali, the head of OCR, indicated she wasn’t necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them “case by case” — suggesting colleges may have more flexibility than they realize. 
We believe that Colleges need to be held accountable if they compromise the rights of their students. Legal commentators on the subject have noted: “no court will allow any set of administrative regulations to trump the United States Constitution,” and colleges would certainly be remiss to attempt such. Yet we worry that concerns regarding lawsuits and federal funding may have rushed colleges’ decision making, as well as compromised colleges’ ability to examine the full implications or challenge the OCR’s policy.
Proponents of using the preponderance of the evidence standard in college judicial hearings often point to the standard’s use in civil trials as justification for its use in campus hearings. However, this comparison ignores the vast differences between civil courts and campus hearings. Indeed, campus hearings fail to offer accused students anywhere near the protections afforded defendants in civil court. Civil trials are governed by an intricate process that balances a plaintiff’s need for access to justice with the burden on a defendant of dealing with frivolous, erroneous, or malicious claims. Both the Constitution and state and federal rules of civil procedure seek to ensure that all relevant evidence is heard, that a just and accurate verdict is reached, and that decisions, once delivered, are final.
In stark contrast, accused students in campus judicial hearings may not be allowed counsel. Allegations against accused students are heard by campus administrators or other students, not an impartial judge. Accused students cannot compel discovery. Accused students may not be allowed to cross-examine witnesses. The inexact analogy between civil courts and campus courts provides vivid illustration of the fact that in many instances, the most important substantive procedural protection accused students may receive is the fact that their innocence is presumed until the accuser is able to satisfy their evidentiary burden under the standard of proof. Rendering this crucial standard simply “more likely than not,” then, leaves many accused students all but guilty before the proceedings begin. 
This issue has been debated far too little, and rather quietly if at all. So we ask you, the reader, to raise the question with the educational institutions you are affiliated with.
- Petition that your college and the OCR justify the way in which lowering the standard of evidence undermines survivors by reducing confidence in the judicial process.
- Petition that your college and the OCR justify applying the lowest confidence standards to these “quasi-criminal” cases, even though the Supreme Court considers them to warrant a higher burden of proof than preponderance.
- Petition that your college justify its specific choices in policy implementation and their continued use, in light of the Princeton policy which complies with the DCL without unduly sacrificing due process.
“Because the OCR told us to” is not an acceptable answer to these questions. Colleges must be able justify policy choices on their own merit, and if they cannot, we must petition that they change them.
No system is perfect. But when you look at injustices which have arisen from our criminal justice system under “beyond a reasonable doubt”, it is hard to be confident that every college’s disciplinary process (or even a majority) are 100.00% free of race, class, sex, gender, or other bias. And because this is the case, applying a standard of “more sure than not” or 50.01% cannot be considered due process. Colleges are not the courts, and should not be expected to have “beyond a reasonable doubt” as their burden of proof – but they also lack many of the court’s protections. Nor are these cases comparable to the civil cases cited by the OCR. The “clear and convincing standard” in place at many of the nations’s top colleges before the OCR letter was not chosen by chance, or to hinder survivors; it existed to strike the difficult balance that is due process when the importance of a just outcome, and the consequence of an unjust one, for all parties is so great.
P.S. A full year later and the OCR still has yet to respond or even acknowledge FIRE’s May 5 letter criticizing many parts of the DCL. In the context of such controversial questions, their silence is deafening.
FIRE Updates Since their May 5 2011 Response:
FIRE Responds to Criticism of Their Analysis:
Reporting on the Dear Colleague Letter:
Don’t know where to start? Sharing, re-blogging, or printing this poster may be a way to launch the conversation on your campus. Or feel free to email us your questions and suggestions at CollegeJustice at gmail.com