Responding to ‘Preponderance of the Evidence’ Advocates

By October 15, 2012

On October 1, FIRE’s Joe Cohn penned an opinion piece for The Chronicle of Higher Education arguing against the decision by the Department of Education’s Office for Civil Rights (OCR) to mandate that colleges and universities use the "preponderance of the evidence" standard when adjudicating accusations of sexual misconduct. OCR insists the standard must be used on campus because it is the standard used in federal courts for civil suits, but this argument fails to recognize the long list of due process protections required in federal courts but not required on campus. These protections ensure the basic fairness of the judicial system and are simply not provided on college campuses. Without them, Joe argued, using the preponderance of the evidence standard—our nation’s lowest evidentiary threshold—leads to unjust outcomes and fails to provide sufficient protections to those students accused of horrible misconduct. 

In response to Joe’s op-ed, Nancy Hogshead-Makar, senior director of advocacy at the Women’s Sports Foundation, and Brett A. Sokolow, an attorney and founder of the National Center for Higher Education Risk Management (NCHERM), have penned a piece of their own arguing that OCR’s mandate was appropriate. 

Among the more startling arguments Hogshead-Makar and Sokolow advance, you’ll find this:

Preponderance presumes a level playing field, one that is not advantageous to either party. But a higher standard, such as clear and convincing evidence, would make it less likely that those who commit sexual misconduct would be held accountable. Ponder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not. [Emphasis added.]

Yes, indeed, let’s ponder that. Why do we think that the burden should be on accusers to prove their accusations rather than on the accused to somehow prove their innocence? Hint: It may be because in the United States, since our nation’s founding, we have insisted both (1) that the accused must be considered innocent until proven guilty and (2) that basic fairness requires that the burden of proof be on the accuser.

Read both op-eds at The Chronicle. We’ll have more as the debate unfolds.

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