Tulane University's Student Affairs Committee recently voted to pass a revised Student Code of Conduct that, among other measures, would lower the standard of evidence in student disciplinary matters from one of "clear and convincing evidence" to a "preponderance of evidence." As the Tulane student newspaper The Hullabaloo reports, the new Code of Conduct still needs to pass through the Faculty Senate and the University Senate, and be approved by Tulane President Scott Cowen's cabinet, before taking effect. However, as it currently stands, the revised Code of Conduct would deal a major blow to students' due process rights. Coupled with Tulane's red-light rating in Spotlight for its speech policies, the proposed measure raises real questions about Tulane students' rights and the state of liberty on campus.
As adopted by the Student Affairs Committee, the "preponderance of evidence" standard requires that an accused individual more likely than not committed an alleged offense. In other words, it merely requires that there is a 51 percent chance that he or she committed the offense. We have written before about the fact that this evidentiary standard, which in real courts is acceptable for civil but not criminal cases, fails to adequately safeguard students' rights and interests during campus judiciary affairs. Campus judicial proceedings most often are a closer analog to criminal proceedings since they can adjudicate cases like rape, assault, theft, etc.—crimes for which most Americans are understandably not comfortable with being "sort of" sure that the defendant is guilty.
The "preponderance of evidence" standard pales in comparison to the sturdier "clear and convincing evidence" standard, which traditionally requires that it be substantially more likely than not that the accused student committed the offense in question. At least one Tulane student interviewed for the Hullabaloo article, George Wendt, president of the Graduate and Professional Student Association, recognized this problem:
'I think it's the wrong standard,' Wendt said. 'We're talking about some very serious punishments. They can take away your degree after you've graduated, and in order to do that, they have to say they they're 51 percent sure you did something wrong. That's an enormous responsibility on their part, and so I don't think it's the right standard....'
The "preponderance of evidence" standard also opens the door to selective application of university policy and unfair treatment of particular individuals and groups, as university administrators can more easily manipulate the disciplinary process to punish students for unrelated or unsound reasons. In the Hullabaloo, Tulane Associated Student Body President Tim Clinton astutely observes the following:
I think most other people are more trusting of the administration, and it's not that I'm not, but you never know who's going to be in those positions down the road, and it opens them up to really abuse a lot of stuff.
While the proposed change in the evidentiary standard would seem to be a clear reduction in students' due process rights, Tulane's administration defends the measure by pointing to other changes in the revised Code of Conduct. For instance, the revised Code introduces mediation for students accused of non-alcohol, non-drug, and first-time alcohol offenses; mediation would allow accused students to go over the evidence and discuss the offense and punishment with administrators, and also would call for lighter penalties. Additionally, the revised Code provides students the right to appeal a decision for any reason, whereas the previous Code limited the right of appeal to certain cases determined by four listed criteria. In light of these other changes in the revised Code, Tulane Director of Student Conduct Kristen Kawczynski states:
I think there was a general consensus from the students that they felt that their rights wouldn't be protected by preponderance, which wasn't the case, but that's what they were feeling... So we tweaked some things. We enhanced the mediation part that was in there, and they tweaked the appeals part so that the students felt more comfortable that they had other means in case they felt a decision was made that wasn't supportive.
However, these measures fail to remedy the shortcomings of the "preponderance" standard. A student's right to enter mediation and accept a lesser punishment for an alleged offense would not erase the fact that, were the standard of evidence stronger in campus hearings, he or she might feel more secure about contesting the accusation and ultimately exonerating himself or herself completely. In other words, the student could be essentially bullied into accepting some form of punishment through mediation rather than risk greater punishment by subjecting himself or herself to a full hearing with its attendant due process flaws.
It is also no answer to the flaw in the underlying standards of justice to say that students enjoy an additional layer of appeal. While this may give students another "roll of the dice," since a 51-49% sort of case could often also be a 49-51% sort of case, this is not a good answer for those who wish to actually seek justice instead of expediency in campus tribunals. Rather, the flaw itself should be corrected.
I hope that Tulane's revised Student Code of Conduct, and more specifically the proposed reduction in the standard of evidence, does not pass through the remaining steps required to go into effect. If it does, the result would be a significant restriction in the due process afforded to students on campus. Hopefully, Tulane's administration is wiser than that.
We're joined by First Amendment attorney Marc Randazza and British journalist Brendan O'Neill to discuss the state of free speech in the United States and Europe. Randazza is a First Amendment attorney and the managing partner at Randazza...