Tonight’s discussion of, and possible vote on, the Alternative Review Process for sexual assault cases may be a defining moment for our campus. In deciding to keep our current standards of due process in such cases – the presumption of innocence, a reasonable doubt standard, a jury of six, the right of confrontation, and a prohibition on double jeopardy, among other protections – or to abandon them in favor of a system where an accused student is not presumed innocent, may be convicted on a bare preponderance standard, and has no right to an open hearing, to call or cross examine witnesses (including the accuser), or to be represented, we decide what kind of citizens we want the university to educate.
Do we want to educate students to assume guilt? Or do we want to educate them to take seriously the notions of due process central to the protection of our rights outside the university setting? Many have argued that a university’s judicial board is not a criminal trial, and is more akin to civil proceedings in which a preponderance standard prevails. That is not the case. In the adjudicatory context, universities are more like societies than private entities. In a civil proceeding, private citizens sue other private citizens, and the remedy requires the wrongdoer to pay the plaintiff for the wrong he has suffered. No other penalty attaches. Here, however, the accused stands as a member of the university’s society, and it is the society that is prosecuting him; and societal punishments attach to a conviction. One need not elaborate on the consequences of long-term suspensions or expulsions – the student is deprived of an education, has a permanent record, will find it much more difficult to secure employment, and the like. These kinds of consequences do not follow from any civil proceeding of which I am aware. Even so, civil proceedings in the United States also have several of the protections the ARP would deny our students, from the right to call and cross examine witnesses in an open hearing, to representation, and to a unanimous jury verdict of between six and twelve peers.
It is true, as a legal matter, that the university can adopt whichever policy it wants. It can adopt the protections afforded defendants in criminal trials, civil trials, or no protections at all. The question is which process it ought to adopt. It is important to point out, moreover, that it is not true as a legal matter that Stanford University must comply with the “Dear Colleague” letter from the federal Department of Education, which urged universities receiving federal funding to adopt a preponderance of the evidence standard. I raise this point because it seems to have been of particular concern to some students on the Graduate Student Council.
As the letter itself states, all the law actually requires is that “all recipients… adopt and publish grievance procedures providing for the prompt and equitable resolution of sex discrimination complaints.” The key is what constitutes a “prompt and equitable” resolution. The author of the Dear Colleague letter stated that a “school must use a preponderance of the evidence standard” if it is to be consistent with Title IX. This is simply not the case. Schools must use this standard if they are to be consistent with the Education Department’s guidance, but guidance documents are not enforceable as law. Their rules must go through the notice-and-comment process spelled out in the Administrative Procedures Act. Guidance documents have come to dominate the regulatory scene, but as the Court of Appeals for the District of Columbia Circuit has written, “It is well-established that an agency may not escape the notice and comment requirements… by labeling a major substantive legal addition to a rule a mere interpretation.” If a guidance document purports to make law that is not established in a congressionally enacted statute, “[t]his it cannot legally do without complying with the rulemaking procedures.” The Department of Education has not complied with the rulemaking processes here, and Stanford University need not follow its lead – and perhaps we ought not to.
 Appalachian Power Co. v. E.P.A., 208 F.3d 1015, 1024, 1028 (D.C. Cir. 2000).
Ilan Wurman, J.D. ’13