Reversing Course, Princeton’s Proposed Sexual Assault Policy Chips Away at Due Process

Next week, the Council of the Princeton University Community (CPUC) will decide whether to adopt a proposed sexual assault policy already approved by Princeton faculty members that would, among other things, change the standard of proof in sexual misconduct cases, weakening due process protections for accused students. Currently, a student charged with sexual misconduct at Princeton will be found responsible only if there is “clear and persuasive evidence” of his or her guilt. However, the new policy would require only that it be more likely than not that the accused student is guilty of sexual misconduct.

An overwhelming majority of colleges and universities across the country have adopted the “preponderance of the evidence” standard since the Department of Education’s Office for Civil Rights (OCR) mandated that they do so in an April 4, 2011 “Dear Colleague” letter. Advocates of the standard argue that the mandate is justified because the same standard is used in civil cases. As FIRE has pointed out, however, campus disciplinary hearings lack many of the procedural safeguards present in civil trials, and the ramifications of a guilty finding for the accused student can be life-changing. (While the punishments an institution may impose on students don’t, of course, include jail time, Princeton’s current standard isn’t as exacting as the one used in criminal trials, either. Criminal trials require guilt to be proven “beyond a reasonable doubt.”)

It is significant, therefore, that Princeton appears set to let go of this element of its sexual misconduct policy, a rare but essential protection for accused students—particularly because the university had previously touted its refusal to conform to OCR’s April 4, 2011 mandate as a necessary recognition of the importance of due process. Writing for the Associated Press in 2012, reporter Justin Pope interviewed both former Assistant Secretary for Civil Rights Russlynn Ali and Christopher Eisgruber, then Princeton provost and now president, about the university’s decision to reject the preponderance of the evidence standard:

With access to federal funding at stake, few would likely cross the administration's view. But some appear willing to push the preponderance standard requirement. Princeton University will continue to run campus disciplinary proceedings using a "clear and persuasive" standard, while conducting a parallel process in sexual assault cases using the preponderance standard to determine where there's been a Title IX violation.

In theory, Princeton could clear an accused student of violating campus rules, but still conclude a Title IX violation took place, triggering its requirement to provide support for the victim (while the OCR guidance says colleges may have to take steps to ensure victims are separated from their assailants in classes and dorms, it doesn't tell colleges how to punish).

[Wendy] Murphy, the Boston attorney, and some other experts criticize that approach and doubt OCR would tolerate it. But Ali, the head of OCR, indicated she wasn't necessarily opposed to a two-tracked system. She declined to address any particular school, but said OCR was talking with colleges about their concerns and would study them "case by case" – suggesting colleges may have more flexibility than they realize.

Princeton Provost Christopher Eisgruber said the policy is the best way to balance protecting both the Title IX and due process rights of students.

"There are in these kinds of proceedings two different kinds of mistakes that can be made," he said. "You have to protect against both of them."

Eisgruber’s change of heart is disappointing.

The Wall Street Journal reported on the likely policy change last week, noting not just the policy’s lower standard of proof but also its vague statement that a three-person fact-finding panel would undergo “training in investigating and evaluating conduct prohibited under the policy.” The WSJ editorial describes the potential problem with this arrangement:

How the investigators will be trained is a crucial question. In 2011, the Foundation for Individual Rights in Education reported on training materials used at Stanford University that purported to enumerate characteristics of abusers and victims. The former, according to the Stanford materials, "act persuasive and logical," while the latter "feel confused." Combined with the preponderance-of-evidence standard, such vague and prejudicial guidelines are enough to create a nearly unrebuttable presumption of guilt.

WSJ also predicts that CPUC will feel it has to accept these changes because of guidance from OCR. But as the editorial board argues, and as FIRE has said many times before, following OCR guidance does not suddenly render universities competent to deal with such serious felony crimes:

Universities are ill-equipped to investigate and adjudicate allegations of violent crime; that is why we have police, prosecutors, judges and juries. The pressure on universities to conduct such investigations, and to jettison due process, emanates from Washington, where the Education Department's Office of Civil Rights has imposed onerous demands on educational institutions in the name of combating sex discrimination.

FIRE will continue to provide analysis here on The Torch as Princeton and other institutions across the country revise their sexual assault policies this fall.