Op-Ed: Against the Preponderance of Evidence Standard
May 21, 2012
While sexual assault is an issue that needs to be taken seriously by campus administrators, subjecting students accused of sexual assault to the preponderance of evidence standard – the lowest burden of proof in our judicial system – is not the proper way to address such transgressions.
While the guidelines in the “Dear Colleague” letter with regard to the burden of proof may be straightforward, the legal justification is tenuous at best. The Obama administration justifies using the low standard in these cases because it is what would be used, say, if Stanford were to be sued for discriminating on the basis of sex. As Hans Bader, a former lawyer for the Office for Civil Rights, wrote, “Students cannot violate Title IX; only schools can be sued under Title IX, not individuals… Moreover, Students ‘are not agents of the school,’ so their actions don’t count as the actions of the school.” The letter, by requiring a university’s students to be subject to the same burden of proof as the university itself, makes a logical leap that is far from self-evident.
Indeed, in Davis v. Monroe County Board of Education (1999), the Supreme Court ruled that Title IX violations occur only when schools are “deliberately indifferent to sexual harassment… [that] deprives the victims of access to the educational opportunities or benefits provided by the school.” It is not clear how applying the clear and convincing standard (about 75 percent certainty) to sexual assault cases is representative of a university being “deliberately indifferent.”
In addition to the shaky legal justification, the 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.
While I am in favor of other aspects of the ARP – for instance, I agree that the accused should not have a right to confront the accuser – the preponderance of evidence standard opens the door for innocent students to be found responsible. In a criminal trial, if there is a generally low conviction rate for a given crime, we do not lower the burden of proof. Doing so violates the due process rights of the accused. If the loss of federal funds were not at stake, Stanford would ideally adopt the clear and convincing standard while pursuing other means to encourage sexual assault reporting that do not jeopardize the rights of the accused.