The Department of Education’s Office for Civil Rights (OCR) announced last week that it has entered into a resolution agreement with Princeton University after finding that the institution was in violation of Title IX. OCR’s demands include the use of the “preponderance of the evidence” standard of proof in adjudicating sexual misconduct cases—meaning that students accused of sexual assault or harassment must be found guilty if the fact-finders determine it is more likely than not that he or she committed the violation.
As FIRE has noted on The Torch before, until recently, Princeton was one of just a small number of institutions (PDF) still requiring “clear and persuasive” evidence of guilt (generally considered to be the same as the “clear and convincing” standard) in such cases. Most colleges and universities adopted the “preponderance” standard following OCR’s April 4, 2011 “Dear Colleague” letter. There is debate, though, over whether the standard is required by Title IX. FIRE’s Joe Cohn spoke with Inside Higher Ed about the change at Princeton. IHE reported last week:
While the Department of Education has the ability to determine what exactly violates Title IX and potentially pull federal funding from colleges who are in violation, preponderance of evidence has not been codified by Congress. The Campus SaVE act does not dictate what standard a college should use, only requiring that institutions disclose what that standard is. Joe Cohn, legislation and policy director at the Foundation for Individual Rights in Education, said that the department is “on shaky ground when they insist that preponderance of evidence is the only acceptable standard of proof under Title IX,” because, legally, it is only the current administration’s interpretation of the law.
“But it doesn’t matter if their interpretation is off by an inch or a mile, because who is willing to be a test case on that,” Cohn said. “With federal funding at stake, institutions are too afraid to engage and criticize a regulating body. This type of chilling atmosphere is not helpful to anyone. Nobody is willing to take a stand.”
According to Inside Higher Ed, SurvJustice executive director Laura Dunn said Princeton’s reluctance to adopt the “preponderance” standard reflects “arrogance and ingrained male privilege.” FIRE views the “clear and convincing” standard as one of the few procedural safeguards that can protect students against incorrect findings of guilt in campus adjudicatory systems that often lack clear rules of evidence, the opportunity to cross-examine witnesses, and other critical elements present in civil and criminal trials. It is troubling that something as fundamental as the right to a fair hearing before punishment would be dismissed as “male privilege.”
Since colleges and universities are bowing to pressure to curtail accused students’ rights, change may depend on the dozens of students now suing their schools and, in some cases, filing Title IX complaints alleging that they were denied due process after being accused of sexual assault. Though the cases don’t hinge on the use of the preponderance standard, that low burden of proof makes it all too easy for students to be found responsible and expelled even when it is far from clear that the student is guilty.