The latest battleground for students’ due process rights when facing allegations of sexual misconduct appears to be Stanford University, which is contemplating measures in its Alternative Review Process (ARP) that would fail to adequately protect students who are accused of some of society’s vilest offenses. Yesterday, FIRE sent a letter to Stanford’s Graduate Student Council (GSC) urging the GSC to not approve those measures and to stand up for their fellow students’ fundamental due process rights.
The ARP has been the subject of a good deal of discussion and debate on Stanford’s campus, and for good reason. Among other things, the ARP would (a) institute the low "preponderance of the evidence" (i.e., more likely than not) evidentiary standard for all cases where students are accused of sexual misconduct, including sexual assault; (b) allow an accusing student to appeal a hearing panel’s finding, creating the circumstance of "double jeopardy" that is constitutionally disallowed in criminal cases; and (c) require a mere majority vote by the hearing panel, rather than unanimity, to reach a finding of guilt. FIRE is concerned about each of these issues and their potential to prevent accused students from having a fair, impartial, and reliable process.
Of course, if these violations of due process sound familiar, that’s because we have been working against them for a year now, ever since the Department of Education’s Office for Civil Rights (OCR) issued a "Dear Colleague" letter in April 2011. Most notably, the OCR letter instructs federally funded colleges and universities to adopt the preponderance of the evidence standard of proof in all campus adjudications of sexual harassment and sexual assault. For instance, we recently wrote Cornell University about these very issues, only to see Cornell adopt the preponderance standard for student sexual misconduct cases—and in the process create a two-tiered system whereby students accused of lesser offenses will be tried under a stronger standard of proof than those accused of serious sexual offenses.
Hoping for a better result at Stanford, we sent our letter to the GSC yesterday, stating, in pertinent part:
Stanford’s adoption of the preponderance of the evidence standard would be inappropriate for several reasons. First, the preponderance of the evidence standard—our judiciary’s lowest—fails to adequately protect the due process rights of students accused of such serious misconduct. Students found guilty of sexual misconduct, in particular sexual assault, likely face lengthy suspensions, if not immediate expulsion. Given the gravity of the charges and the accompanying prospect of life-altering punishment, it is unconscionable to require that those accused of such serious violations be found merely "more likely than not" to have committed the offense in question.
Second, utilizing the lower standard of proof to adjudicate sexual misconduct cases serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Implementing the preponderance of the evidence standard in hearings for sexual misconduct allegations 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 Stanford, and should convince the university to reject the lower standard in favor of the more appropriate "clear and convincing evidence" standard. Given the unequivocal value of a college education to an individual’s prospects for personal achievement and intellectual, professional, and social growth, reducing procedural protections for those students accused of sexual misconduct is deeply troubling.
FIRE recognizes that Stanford, like all schools receiving federal funding, must comply with OCR’s April 4 mandate or else face investigation and loss of funding. We understand that loss of federal funding would be devastating for many universities, including Stanford. Nevertheless, FIRE strongly believes that requiring colleges and universities to institute our judiciary’s lowest standard when hearing allegations of such grievous misconduct is inappropriate and effectively ensures that more students will be incorrectly found responsible for misconduct they did not commit.
You can read our letter in full here to see the rest of our arguments.
Both the Undergraduate Senate and the Graduate Student Council at Stanford will need to vote on the ARP’s measures, though we are told they may be tabled until the fall. No matter when the voting takes place, we hope these students carefully consider the due process rights of their fellow students and vote accordingly.