May 2, 2012
Graduate Student Council
Graduate Community Center, Second Floor
750 Escondido Road
Stanford, California 94305
Sent via U.S. Mail and Electronic Mail
Dear Graduate Student Council Member:
The Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on our nation’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.
I write today to express FIRE’s concern about the threat to student due process rights presented by Stanford University’s consideration of a permanent policy change that would implement the "preponderance of the evidence" standard of proof for campus hearings involving allegations of sexual misconduct. FIRE understands that at present, the Undergraduate Senate and the Graduate Student Council are considering a proposal to permanently adopt the "Alternative Review Process" (ARP). I understand that sexual misconduct allegations are currently adjudicated in accordance with ARP’s provisions on an interim basis. I further understand that ARP was implemented in an effort to bring Stanford’s procedures into compliance with the new federal mandates announced by the Department of Education’s Office for Civil Rights (OCR) in its April 4, 2011, "Dear Colleague" letter.
Per reporting by The Stanford Daily, I have learned that the current debate centers around ARP’s lowering of the standard of evidence employed in hearings adjudicating sexual misconduct allegations, ARP’s provision allowing both the accused and accuser to appeal a hearing’s finding, and ARP’s requirement of a majority vote by the hearing panel to secure a finding of guilt. I will discuss each concern in turn.
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.
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 misconduct in a campus judicial proceeding means that greater protections are required, not lesser.
The Court has further observed that the use of the preponderance of the evidence standard in civil litigation is due in significant part to the fact that "[t]he typical civil case involv[es] a monetary dispute between private parties. Since society has a minimal concern with the outcome of such private suits, plaintiff’s burden of proof is a mere preponderance of the evidence. The litigants thus share the risk of error in roughly equal fashion." Addington v. Texas, 441 U.S. 418, 423 (1979). "[M]indful that the function of legal process is to minimize the risk of erroneous decisions," the Court has noted that an intermediate standard of proof (e.g., the clear and convincing evidence standard) may be employed "in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing by the defendant," because the "interests at stake in those cases are deemed to be more substantial than mere loss of money and some jurisdictions accordingly reduce the risk to the defendant of having his reputation tarnished erroneously by increasing the plaintiff’s burden of proof." Id. at 424, 425. Therefore, in cases where "the private interest affected is commanding; the risk of error from using a preponderance standard is substantial; and the countervailing governmental interest favoring that standard is comparatively slight," the Court has held that use of the preponderance of the evidence standard is "inconsistent with due process." Santosky v. Kramer, 455 U.S. 745, 758 (1982). The Court, additionally, has utilized the "‘clear, unequivocal and convincing’ standard of proof to protect particularly important individual interests in various civil cases." Addington, 441 U.S. at 424.
Proponents of using the preponderance of the evidence standard in college judicial hearings often point to the standard’s use in civil trials as justification for its use in campus hearings. However, this comparison ignores the vast differences between civil courts and campus hearings. Indeed, campus hearings fail to offer accused students anywhere near the protections afforded defendants in civil court. Civil trials are governed by an intricate process that balances a plaintiff’s need for access to justice with the burden on a defendant of dealing with frivolous, erroneous, or malicious claims. Both the Constitution and state and federal rules of civil procedure seek to ensure that all relevant evidence is heard, that a just and accurate verdict is reached, and that decisions, once delivered, are final.
In stark contrast, accused students in campus hearings may not be allowed counsel. Allegations against accused students are typically heard by campus administrators or other students, not an impartial judge. Accused students cannot compel discovery. Accused students are often not allowed to cross-examine witnesses. The inexact analogy between civil courts and campus courts provides a vivid illustration of the fact that in many instances, the most important substantive procedural protection accused students may receive in campus hearings is the fact that their innocence is presumed until the accuser is able to satisfy their evidentiary burden under the standard of proof. Rendering this crucial standard simply "more likely than not," then, leaves many accused students all but guilty before the proceedings begin.
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. We detailed these concerns in full in our May 5, 2011, response to Assistant Secretary for Civil Rights Russlynn Ali, which we have enclosed here.
With regard to ARP’s procedure for student appeals, FIRE believes that granting the accuser a broad right to appeal is inconsistent with fundamental principles of American justice, and in particular the constitutional safeguard against "double jeopardy." As civil libertarian, author, and FIRE Board of Advisors member Wendy Kaminer wrote for The Atlantic recently, regarding a similar provision in an earlier draft of the Violence Against Women Act reauthorization bill introduced in the United States Senate:
Moreover, if an accused student is not found guilty, even under this very low standard of proof, his or her accuser may be afforded a right to appeal (under section 304) exposing the accused to double jeopardy. Of course, campus disciplinary proceedings are not formal criminal trials governed by the 5th and 6th Amendments. But you’d have to regard the protection against double jeopardy as a mere constitutional technicality to believe that schools should dispense with it. Or you’d have to assume that, as a general rule, fairness requires convictions and provides multiple opportunities to obtain them.
In the civil context, both plaintiffs and defendants may appeal-but on appeal, the reviewing court is typically limited to the evidence and findings of fact already in the record. It bears repeating that in civil suits there are multiple procedural safeguards that simply are not required (and are rarely, if ever, seen) in campus disciplinary proceedings. The application of well-established rules of evidence, the right to confront accusers, and the right to counsel significantly reduce the risk of error and ensure that proceedings are generally fair, as opposed to results-driven. The absence of those and other procedural and structural safeguards renders the analogy to civil proceedings inexact and makes allowing the accuser to appeal in campus proceedings-even after an acquittal-particularly unjust.
Finally, with regard to unanimity, FIRE believes that due process protections are still further weakened when, as would be the case with ARP, the preponderance of the evidence standard is combined with a requirement that merely a majority vote of the hearing panel is required to find a student responsible, rather than a unanimous panel decision. Because these lowered protections will almost certainly cause still more erroneous rulings than the use of a higher standard of proof and other protections, Stanford should do all it can to minimize these results, out of respect for both justice and self-interest. False rulings may lead to lawsuits from wronged students and further liability and embarrassment for the university. Moreover, FIRE believes that Stanford’s policy should provide strong due process protections in areas where OCR has declined to mandate specific practices, as it has with regard to unanimity. I note, too, that other universities, such as the University of Virginia, have adopted unanimity requirements in their hearing systems following their own policy revisions prompted by OCR’s Dear Colleague letter.
For these reasons, FIRE asks that Stanford reject the implementation of the preponderance of the evidence standard for student sexual misconduct allegations, avoid the circumstance of double jeopardy in its procedure for appeals, and require unanimity in the hearing panel’s vote. Thank you for your attention and sensitivity to these important concerns.
Director of Legal and Public Advocacy
Graduate Student Council Membership