Responding to Volokh’s Defense of the ‘Preponderance’ Standard

By June 12, 2013

Since its issuance more than two years ago, FIRE has been leading the charge against the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011, “Dear Colleague” letter (DCL), which requires colleges and universities that accept federal funds (nearly all of them) to use the low “preponderance of the evidence” standard of proof when deciding campus sexual assault and sexual harassment cases.

Earlier this month, First Amendment scholar, UCLA law professor, and longtime FIRE friend Eugene Volokh posted an entry on his popular blog The Volokh Conspiracy arguing in support of OCR’s mandate. Today, I was given the opportunity to respond to his arguments on The Volokh Conspiracy. Here’s a short snippet from my response:

FIRE believes that every accusation of sexual harassment (or any other offense) must be competently evaluated. Of course, no college or university should ever ignore an accusation that would be actionable if true. But justice does not require sacrificing due process rights, and meaningful protections must be provided to the accused. The measure upon which we judge these proceedings should be the fairness, integrity, and reliability of the outcomes. By that measure, the preponderance of the evidence standard—coupled with the current shortcomings of campus procedures—just doesn’t cut it.

We’re extremely thankful that Professor Volokh has provided us the opportunity to respond. We hope that we have been persuasive and that, at the very least, our discussion will generate more attention to the important issue of due process on campus. To check out my full response, as well as Professor Volokh’s blog entry, that started the conversation, head over to The Volokh Conspiracy.

Cases: Departments of Education and Justice: National “Blueprint” for Unconstitutional Speech Codes