Monday, August 08, 2016

Law Professors Publish Support for DCL's Preponderance Standard

Over ninety law professors* have signed on to a white paper that defends the Department of Education's 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases.  Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly.  The agency felt the need to clarify Title IX's requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondent's guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more.

As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white paper's authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault.

Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power.  In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a university's power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives.

*myself included -EB