Joe Cohn on Campus vs. Civil Trials in ‘The Chronicle of Higher Education’

By October 1, 2012

Since April 4, 2011 (PDF), the Department of Education’s Office for Civil Rights (OCR) has been insisting that, in order to comply with Title IX, campuses must utilize our judiciary’s lowest standard of proof—the preponderance of the evidence standard—when adjudicating allegations of sexual misconduct. This means that if the fact finder believes the allegations are a mere 50.01% likely to be true, the accused is held responsible and is subject to discipline (which may even include expulsion).

OCR’s and many of this policy’s proponents’ primary argument for requiring the preponderance of the evidence standard is that federal courts use that standard when deciding civil lawsuits, including sexual harassment claims, so it must be a fair standard for use in the campus judiciary. In The Chronicle of Higher Education, I address why the comparison is faulty. Here’s a short excerpt from my op-ed:

While it is true that most civil cases in federal court are decided under the preponderance standard, due process requires that this low burden of proof be offset by procedural safeguards—lots of them.

For example, to ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party’s request, facts are determined by a jury of one’s peers. The parties have the right to representation by counsel, and a mandatory process of "discovery" ensures that all relevant evidence will be made available if the opposing party asks for it.

And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.

So which of those procedural protections are guaranteed in college disciplinary hearings? None. The procedural safeguards used at most colleges are embarrassingly minimal.

But that’s not all. Check out the rest of the piece for more.

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