College’s Hypocrisy on Standard of Evidence When It comes to Accused Students

September 22, 2015

By Ashe Schow at Washington Examiner 

A Vermont college was ordered to halt the expulsion of a student who was expelled for sexual assault without being given a hearing. But what the college argued in its defense was rather interesting.

Middlebury College used a “preponderance of evidence” standard (meaning campus administrators have to be just 50.01 percent sure an assault was committed) even before the Department of Education mandated colleges to lower the bar on proof of charges against students. But when it came to defending itself from this student’s lawsuit, the college demanded the higher standard of “clear and convincing” evidence that it had wronged him.

In a footnote of the judge’s decision to halt the expulsion, noticed by Samantha Harris of the Foundation for Individual Rights in Education, the college argued for the higher standard of proof.

Middlebury argues a higher standard — requiring Plaintiff to demonstrate ‘a clear or substantial likelihood of success on the merits’ — applies because an injunction will provide plaintiff with substantially all the relief sought and the relief cannot be undone and because plaintiff seeks to alter rather than maintain the status quo,” the footnote reads.

The reason the male student was able to get his expulsion halted was that he showed that he would have a “likelihood of success on the merits” and that he would suffer irreparable harm if the federal court did not issue a preliminary injunction.

So, to recap, when accusing students of a felony, a low threshold of evidence is okay, but when accused of unfairness, Middlebury wants the charges to clear a higher bar. Nice legal double standard, if you can get it.

The advocates of campus kangaroo courts will surely groan about the difference between a “college disciplinary panel” and a “court of law.” But the difference here is between a felony charge and a lawsuit over unfair treatment. This student was not accused of cheating on a test; he was accused (by a non-student, I might add) of a crime. To make matters worse, the accusation was made while the accused student was on a study-abroad program, and the administrators of that program found him “not responsible.”

But after the student returned to the campus, the accuser threatened to file a complaint with the Department of Education. It was then that the college decided to re-investigate the accusation in order to find the student responsible and save itself from a federal investigation.

Students who are enrolled in colleges but have not read my warning about campus pseudo-courts should do so now. What happened at Middlebury is not uncommon.

Schools: Middlebury College