Responding in Full to ‘Preponderance of the Evidence’ Advocates

On Oct. 1, I penned an article for The Chronicle of Higher Education arguing that the Department of Education's Office for Civil Rights' (OCR's) insistence that colleges and universities use the "preponderance of the evidence" standard when adjudicating accusations of sexual misconduct was wrong. OCR says the standard must be used on campus because it is the standard used in federal courts for civil suits. But OCR's comparison of campus tribunals with federal courts is deeply flawed because it fails to take into account the many due process protections required in federal courts that ensure the basic fairness of trials—protections that aren't required or commonly provided on campus.

In response to my piece, Nancy Hogshead-Makar, the senior director of advocacy at the Women's Sports Foundation, and Brett A. Sokolow, the founder of the National Center for Higher Education Risk Management, have authored a Chronicle op-ed of their own.

Hogshead-Makar and Sokolow do not attempt to refute my point that the comparison of campus tribunals to federal courts is inexact. Instead, they broadly argue that OCR's mandate is appropriate for three reasons: (1) they claim an institution's use of any standard higher than preponderance of the evidence may be considered "deliberate indifference" by a federal court, thus potentially subjecting a university that employs a higher standard to liability for violating Title IX; (2) they claim that the preponderance of the evidence standard is the only fair standard on a normative basis; and (3) they claim that the preponderance of the evidence standard protects the best interests of the colleges, the students, and the employees. All three arguments are faulty.

First, Hogshead-Makar and Sokolow's speculation that universities that do not employ the preponderance standard may subject themselves to liability for being "deliberately indifferent" to sexual misconduct claims is incorrect as a matter of law.

In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court of the United States held that an institution may only be found liable for damages under Title IX if it is deliberately indifferent to claims of sexual misconduct. Writing for the majority, Justice Sandra Day O'Connor explained that a college "may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, the deliberate indifference must, at a minimum, cause [students] to undergo harassment or make them liable or vulnerable to it." [Citations and internal quotations omitted; emphasis added.]

In other words, the Court in Davis stated that a college or university may only be found to be deliberately indifferent and thus liable when it causes students to experience sexual misconduct or leaves them vulnerable to such. Indeed, the Court states that schools will be deemed "‘deliberately indifferent' to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances." Of course, there is nothing "clearly unreasonable" with colleges employing a "clear and convincing" standard of proof.

Nevertheless, Hogshead-Makar and Sokolow somehow think it likely that a federal court will ignore the Supreme Court's clear and binding instruction in Davis. Would a court actually hold a university liable for employing the clear and convincing standard in a hearing for sexual misconduct? Highly unlikely. The Davis Court even noted that "courts should refrain from second guessing the disciplinary decisions made by school administrators," and took special care to "stress that our conclusion here—that recipients may be liable for their deliberate indifference to known acts of peer sexual harassment—does not mean that recipients can avoid liability only by purging their schools of actionable peer harassment or that administrators must engage in particular disciplinary action." So Hogshead-Makar and Sokolow's suggestion that colleges open themselves up to liability by failing to secure guilty findings under the clear and convincing standard is incorrect. Simply put, providing students accused of sexual misconduct due process protections does not constitute deliberate indifference.

Hogshead-Makar and Sokolow's second argument—the assertion that the preponderance of the evidence is the only fair standard—is equally misguided. I was shocked to read two lawyers ask readers to "[p]onder whether it should be harder for a woman to prove that a man raped her than for a man to prove that he did not." Isn't it firmly established in this country that people are innocent until proven guilty and that the burden of proof is always on the accuser or the prosecution? Allowing students to be branded sex offenders and expelled because a fact-finder thought that they were 50.01% likely to have committed a sexual offense—indeed, finding that the accused was a mere .01% more likely than not to have committed the crime—offends our time-honored conception of justice.

Being branded a rapist is not like losing a civil lawsuit. Hogshead-Makar and Sokolow appear to be misguided by the idea that "procedural equity"—a nebulous concept they seem to value more than fundamental fairness—requires lowering the standard of proof to the preponderance standard. To the contrary, fairness must be measured by the procedural integrity of the process and accuracy and reliability of findings. After all, our justice system is founded in part on the determination that it is better for a guilty person to go free than for an innocent person to be falsely condemned.

As my column explained, using our judiciary's lowest evidentiary standard may be acceptable in the civil trial context when its use is coupled with robust due process protections, as it is in federal civil court. But when the accused is given few or no other procedural guarantees—as is the case in many campus judicial hearings—using the preponderance standard sharply curtails the possibility of achieving a just outcome. There is scarcely any difference in believing that an accusation is 49.99% likely to be true and believing that it is 50.01% likely to be true. The difference is so insignificant that for all practical purposes, it can amount to just a hunch that the accused is guilty. Our nation's long-established principles of justice demand a system where more than a hunch is required before subjecting a person to life-altering discipline.

Third, Hogshead-Makar and Sokolow argue that using the preponderance of the evidence standard "protects the best interests not just of colleges, but of students and employees as well." But if the procedures are unfair to the accused, it can hardly be fairly argued that their use is in the best interest of students, unless railroading the accused is somehow in students' best interests. To be clear, I did not argue that the preponderance of the evidence standard in and of itself is necessarily an unfair standard. Instead, I wrote that the preponderance of the evidence by itself—without appropriate accompanying protections—is unfair to the accused. I stand by that assessment here, and have yet to receive any response at all, yet alone a compelling response from OCR, the Women's Sports Foundation, the National Center for Higher Education Risk Management, or anyone else as to why the use of this low standard in the absence of additional protections is untroubling.

As for whether the use of the preponderance standard is in the best interest of an institution's employees, I defer to the conclusions of the American Association of University Professors (AAUP). On June 27, 2011, the AAUP wrote Assistant Secretary for Civil Rights Russlynn H. Ali to criticize OCR's new mandate, noting that it would "tend to erode the due-process protections for academic freedom" and is inconsistent with widely adopted AAUP guidelines that require institutions to use the "clear and convincing" standard of evidence when seeking the dismissal of a tenured university professor. On August 18, 2011, the chair of the AAUP's Committee on Women in the Academic Profession and the AAUP's former president wrote separately to echo the first letter's concerns, stating that "preserving a higher standard of proof is vital in achieving fair and just treatment for all." Hogshead-Makar and Sokolow may disagree, but I trust university professors to decide for themselves what is in their own best interest.

With regard to colleges themselves, setting up the process to find a higher percentage of the accused guilty might make the hearing process simpler for institutions. But if universities are to be principled, they must place their students' interests first. The only system of justice that is in the student body's best interest is one that produces trustworthy, reliable findings of guilt and innocence. Universities must take sexual misconduct seriously. But this legal and moral obligation is in no way incompatible with providing meaningful due process rights to accused students.

Finally, the authors argue that compliance with OCR is a choice that universities have made voluntarily. This claim is misleading at best. OCR has threatened that failure to comply with their directive may lead the Department of Education to strip resisting institutions of federal funding.

OCR's decision to pursue institutions that fail to adopt the specific preponderance of the evidence standard is a stark departure from its previous instructions, which granted universities far greater flexibility. Indeed, OCR's 2001 Revised Sexual Harassment Guidance noted that "procedures adopted by schools will vary considerably in detail, specificity, and components, reflecting differences in audiences, school sizes and administrative structures, state or local legal requirements, and past experience."

But now that universities risk serious penalty if they dare to maintain higher burdens of proof, it should surprise no one that institutions like Yale University have reduced their evidentiary standards to preponderance as part of settlements with OCR. OCR's mandate leaves colleges between a rock and hard place; they must choose to either protect the due process rights of the accused and risk losing all of their federal funding, or they must lower the evidentiary standard and with it compromise the reliability and fairness of those proceedings. I'm glad I'm not an administrator faced with that "choice."