©2014 Kenneth N. Margolin
In an April 4, 2011 "Dear Colleague" letter, the federal Department of Education set in motion a barely noticed assault on basic fairness for college students accused of serious violations of their schools' codes of conduct. "Dear Colleague" letters are the manner in which the Department of Education ("DOE") often issues major policy edicts. Using weak legal arguments for justification, DOE mandated that any college receiving federal funds; i.e., nearly all American colleges and universities, must use the "preponderance of the evidence" standard when deciding charges of sexual harassment or sexual violence, raised against a student. Thus, the many colleges that use the higher standard of proof, the "clear and convincing evidence" standard in passing judgment on students charged with sexual offenses, must change their rules and use the lower standard. Colleges have been threatened by DOE, with audits to be sure that disciplinary codes comport with the "Dear Colleague" letter.
A discussion of the three standards of proof used in our justice system, and why they matter, will aid in understanding the significance of the DOE mandate. A standard of proof is the measure of assuredness that a judge or person acting in an adjudicatory role, must have in all the evidence presented to them, before they pass judgment. The standards of proof are: preponderance of the evidence; clear and convincing evidence; and beyond a reasonable doubt. Beyond a reasonable doubt, the criminal law standard, is probably familiar to most people. When a person is charged with a crime, no matter how petty, the judge or jury must believe, "beyond a reasonable doubt," that the individual is guilty as charged. A federal jury will be told that proof beyond all doubt is not necessary, but that the jury, after reviewing all the evidence, must be firmly convinced of the defendant's guilt. If they believe there is a real possibility that the defendant is not guilty as charged, then they must give him the benefit of the doubt and find him not guilty.
The clear and convincing evidence standard lies between beyond a reasonable doubt and preponderance of the evidence. Some courts have defined the level of certainty a fact finder should have when they apply the clear and convincing evidence standard as "highly probable." Others have held that the fact finder should feel that facts have been proven to a degree that is "full, clear, and decisive." The clear and convincing evidence standard is applied in many areas of civil (non-criminal) law, when the consequences of the decision affects important rights. Some examples are child custody cases, libel cases brought against public figures, civil commitment proceedings, allegations of fraud or other quasi-criminal conduct, and other instances when particularly important individual interests beyond money – such as reputation – are at stake. As the United States Supreme Court explained in Addington v. Texas, 441 U.S. 418 (1979), the function of the standard of proof is to instruct the fact finder as to the degree of confidence he should have in his factual conclusions according to the nature of the adjudication, and that it serves "to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." Id. at 423. The point of legal process "is to minimize the risk of erroneous decision." Id. at 425.
The preponderance of the evidence standard, the lowest of the three standards of proof, is reserved for private disputes generally involving money. Since no over-arching public interest is involved in most private monetary disputes, the parties bear the risk of an incorrect outcome equally. Under the preponderance of the evidence standard, the fact finder must merely believe, after weighing all the evidence, that the matter is more probably true than not true. Even if the fact finder has some doubt, even significant doubts, of the truth of the allegations he is weighing, if he finds them more probably true than not, then he must find in favor of the party making the allegations.
In light of the evolution of the standards of proof in adjudicatory proceedings, it is difficult to understand why the preponderance of the evidence standard is permitted, let alone mandated, when quasi-criminal allegations that can result in suspension or expulsion from college are being considered. Consider the potential impacts of expulsion from college. In addition to the loss of tens of thousands of dollars or more invested in the education, the expelled student faces a tarnished reputation, potential life-time inability to obtain an undergraduate and graduate degree, with a likely diminution in lifelong earnings, fewer employment opportunities, which could negatively impact quality of life, and a written record of the "conviction" that might never disappear. The consequences of a first-time conviction in the criminal system of many crimes may bring far lesser consequences. Yet, conviction of even a minor crime requires that the fact finder believe the accused is guilty beyond a reasonable doubt. The clear and convincing evidence standard represents a fair compromise between the realities that college disciplinary boards are not courts and the fact-finders not judges, and the devastating impact that a suspension or expulsion can have on a student.
If the point of a college disciplinary hearing is to arrive at the correct result, then the more serious the charge against a student, the more important a higher standard of proof becomes. Unlike alleged violations of academic misconduct such as plagiarism, accusations of wrongdoing that violates the criminal laws as well as college rules, take college disciplinary board members into a realm ordinarily reserved for the courts. College officials and student board members are not trained in assessing matters of guilt or innocence. The need for the higher evidentiary standard is greatest when rape or other sexual misconduct is alleged – the precise area in which DOE has ordered the lowest standard of proof. In college rape cases, especially the “date rape” variety, drugs or alcohol are often involved. The accuser may have suffered impaired judgment or perception at the time of the incident, and impaired perception and memory later, making an accurate assessment of conflicting testimony difficult. With a lower standard of proof, college disciplinary board members are invited to say to themselves, “I’ve got some real doubts about what happened, whether there was really a rape or assault, but I think it’s more probably true than not, so I will conclude the accused raped his fellow student.” That is too low a hurdle, fraught with the potential for error, to apply when concluding that a student committed such a horrific act. The lower standard of proof provides a convenient haven for college administrators lacking the courage to exonerate the accused in an environment in which male students are assumed to have adopted a “rape culture,” and in which accusations of sexual assault are presumptively believed to be true.
Some self-proclaimed “victims' advocates” claim that the clear and convincing standard of proof means that the word of the accuser is less valued than the word of the accused. That argument misconstrues the way in which a standard of proof works. The testimony of every individual witness is judged for its believability. The standard of proof is applied to the totality of evidence introduced in the hearing. A college disciplinary panel considering a rape allegation under the clear and convincing evidentiary standard would not assume that the accuser’s testimony was untrue. They would approach it with an open mind. The standard would require, however, that if the panel members had significant doubts about the veracity of the accuser’s testimony, or if after hearing the accused and any other witnesses, they thought that there was a near-even chance that a rape did or did not occur, they could not conclude that the accused was guilty.
Even assuming that the majority of accusations of sexual assault are true, that assumption can play no part in a college disciplinary board’s deliberations. No individual accused of wrongdoing should become a sacrificial lamb to a desire, no matter how justified, to reduce the incidence of rape on campus. Determining the truth of a rape allegation, when the accused agrees that sex occurred, but was consensual, may present a college disciplinary board with its most difficult task. Given the severity of the charge, and the enormous consequences of a “guilty” finding, the preponderance of the evidence standard demanded by DOE poses too great a risk that innocent college students will be found to have committed a criminal act rightly abhorred by society. Presumably, condemning an innocent accused is still the greatest injustice that can occur in our justice system, even on American college campuses. When the appropriate case arises, the DOE April 4, 2011 "Dear Colleague" letter must be challenged, politically and in court.