Yesterday, FIRE asked Cornell University President David Skorton to choose robust student due process rights over the weak evidentiary standard required by the U.S. Department of Education’s Office for Civil Rights (OCR). In our letter, we argue that given the high stakes for students accused of sexual assault, they deserve much more than the "preponderance of the evidence" (more likely than not) evidentiary standard. Torch readers know that FIRE and many others have made this argument repeatedly, and in many forums, in the year following the release of OCR’s April 4, 2011, "Dear Colleague" letter.
As we wrote yesterday, Cornell has been engaged in vigorous campus debate over whether to lower its evidentiary standard for students accused of sexual assault. Yesterday, Cornell’s University Assembly passed a new policy that would mandate the preponderance of the evidence standard—if President Skorton approves it.
In a key part of our letter to President Skorton, we wrote:
[U]tilizing the lower standard of proof to adjudicate sexual assault 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 assault 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 Cornell, 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 assault is deeply troubling.
In the educational context, the Supreme Court of the United States has made clear that when "a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process requires "precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school." Goss v. Lopez, 419 U.S. 565, 574, 580 (1975) (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)). The Court made these observations about due process protections at the elementary and secondary school level, finding at least minimal requirements of due process necessary because disciplinary action "could seriously damage the students’ standing with their fellow pupils and their teachers as well as interfere with later opportunities for higher education and employment." Id. at 575. The increased likelihood of much further-reaching negative consequences for a college student found guilty of sexual assault in a campus judicial proceeding means that greater protections are required, not lesser.
Unfortunately, the Department of Education believes otherwise, and for a year has failed to respond to FIRE’s arguments—which is not exactly a sign of belief in the strength of its arguments.
President Skorton now faces a choice: side with the Supreme Court and students’ due process rights, or side with the Department of Education’s poorly argued, poorly considered mandate to diminish protections for the accused.