FIRE Releases Survey of Evidence Standards Used by Nation’s Top Colleges

By October 28, 2011

FIRE has compiled a survey of the standards of evidence employed by the nation’s top colleges and universities in an effort to gauge the impact of the new requirements announced by the Department of Education’s Office for Civil Rights (OCR).

In an April 4, 2011, "Dear Colleague" letter, OCR mandated that colleges and universities receiving federal funding 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. Schools must adopt the low preponderance of the evidence standard or else risk losing federal funding. The preponderance of the evidence standard is our judiciary’s lowest standard of proof—and, as FIRE explained at length in our May 5, 2011, response letter to OCR (to which OCR has failed to respond), it does not sufficiently protect an accused student’s right to due process.

FIRE’s survey, released today, demonstrates that OCR’s requirement will have a significant impact on university judicial processes, as nearly 40 of the nation’s top 100 universities as ranked by U.S. News & World Report must change or have already changed their policies to incorporate OCR’s mandated standard of proof. FIRE’s research also reveals that OCR’s requirement disproportionately affects higher-ranked schools, more of which had previously employed higher standards of proof.

Some of the major trends highlighted by FIRE’s research include:

  • 39 colleges ranked in the top 100 have already changed or will be required to change their standard of evidence to comply with the OCR mandate.
  • Nine of the top 10 colleges did not use the OCR-mandated "preponderance" standard prior to the OCR letter.
  • 17 of the top 100 colleges had explicitly used a "clear and convincing evidence" or "beyond a reasonable doubt" standard.
  • Only one school out of the top 100 colleges, Brown University, previously used a standard clearly lower than "preponderance of the evidence."

You can download the entire survey and the school-by-school appendix at the bottom of the page here, both in PDF format.

Cases: U.S. Department of Education’s Office for Civil Rights April 4, 2011, Guidance Letter Reduces Due Process Protections