Robert Shibley, TheFIRE
This week, the Stanford Daily student newspaper featured dueling editorials about Stanford’s decision to lower the standard of evidence in sexual misconduct cases in response to last year’s Dear Colleague letter from the Department of Education’s Office for Civil Rights (OCR). FIRE has taken the lead in opposing several provisions in that letter, which states that colleges and universities must employ a “preponderance of the evidence” standard—a 50.01%, “more likely than not” evidentiary burden—when adjudicating student complaints concerning sexual harassment or sexual violence. The OCR regulations further require that if a university judicial process allows the accused student to appeal a verdict, it must allow the accuser the right to appeal as well, resulting in a “double jeopardy” situation for the accused.
Stanford actually used to have a high standard of proof, “beyond a reasonable doubt,” in all of its disciplinary hearings—the same standard used in our criminal courts. With the threat of losing federal funding if it did not comply with the OCR letter, Stanford, like many schools, has chosen to abandon that standard in the case of allegations of sexual harassment or misconduct. Yet this decision has not been without controversy.
The majority of the editorial board of the Stanford Daily thinks that the new, lower standard of evidence will be a plus for Stanford as a whole. In its editorial, the board majority celebrates the fact that the standard of proof will now be lower, noting that since Stanford cannot compel testimony, it’s less likely to be able to meet a higher standard of evidence. It also praises the fact that those accused of sexual assault will no longer be able to cross-examine their accusers, because that would be “traumatic and intimidating.” Finally, it dismisses the possibility that the change will result in an increase in false accusations, saying that the real problem is “underreporting”—in other words, not enough accusations.
More interesting, though, is the fact that the Editorial Board Chair of the Daily isn’t buying this at all. Student Adam Johnson uses reasoning that is similar to FIRE’s to make the case that the preponderance standard undermines the very presumption of innocence itself:
[T]he preponderance of evidence standard goes against one of the core tenets of our judicial system: the presumption of innocence. Although a preponderance of evidence standard is not presuming guilt, it is hardly presuming innocence; only three-fourths of the reviewing panel needs to be 50.1 percent certain that a sexual assault occurred. Some find this acceptable, noting that the same standard is applied to civil cases. But whereas the penalty in a civil suit is monetary, the internal penalty for sexual assault is often suspension or expulsion. If anything, the consequences of being found responsible in such cases warrant the stronger clear and convincing standard.
We agree. Moreover, civil trials have other procedural safeguards to ensure reliability that campus proceedings simply don’t have. For example, in a civil rights lawsuit the parties would typically have lawyers, the benefit of discovery to procure evidence, legally trained and impartial judges, rules of evidence that would prohibit hearsay and other irrelevant evidence, and the threat of perjury if a party or witness were to lie under oath. These protections designed to ensure that civil trials are fair and reliable are often absent in campus disciplinary proceedings.
With the compounding problem of double jeopardy, where a person found not guilty by a Stanford disciplinary panel can effectively be retried at the request of his or her accuser, the low standard of evidence mandated by OCR is a very severe problem indeed. As Johnson puts it, “In a criminal trial, if there is a generally low conviction rate for a given crime, we do not lower the burden of proof.” Indeed we don’t. There are other measures to try to increase reporting and conviction rates for crime. Lowering the level of certainty we have that the person accused of the crime is actually guilty of the crime is a cheap shortcut and an unjust way to address societal problems.
Robert L. Shibley, FIRE’s Senior Vice President, is a native of Toledo, Ohio, and a graduate of Duke University and Duke University School of Law. As Senior Vice President, along with traveling to various campuses to speak about First Amendment issues, Robert has represented FIRE publicly on CNN’s Lou Dobbs Tonight, in national and international radio and TV interviews, and in published editorials in the New York Post, Boston Globe, National Review, Providence Journal, Daily Oklahoman, and other newspapers.
Used with the permission of The Foundation for Individual Rights in Education.