Widgets Magazine


Op-Ed: Against the preponderance of evidence standard

While sexual assault is an issue that needs to be taken seriously by campus administrators, subjecting students accused of sexual assault to the preponderance of evidence standard – the lowest burden of proof in our judicial system – is not the proper way to address such transgressions.

While the guidelines in the “Dear Colleague” letter with regard to the burden of proof may be straightforward, the legal justification is tenuous at best. The Obama administration justifies using the low standard in these cases because it is what would be used, say, if Stanford were to be sued for discriminating on the basis of sex. As Hans Bader, a former lawyer for the Office for Civil Rights, wrote, “Students cannot violate Title IX; only schools can be sued under Title IX, not individuals… Moreover, Students ‘are not agents of the school,’ so their actions don’t count as the actions of the school.” The letter, by requiring a university’s students to be subject to the same burden of proof as the university itself, makes a logical leap that is far from self-evident.

Indeed, in Davis v. Monroe County Board of Education (1999), the Supreme Court ruled that Title IX violations occur only when schools are “deliberately indifferent to sexual harassment… [that] deprives the victims of access to the educational opportunities or benefits provided by the school.” It is not clear how applying the clear and convincing standard (about 75 percent certainty) to sexual assault cases is representative of a university being “deliberately indifferent.”

In addition to the shaky legal justification, the preponderance of evidence standard goes against one of the core tenets of our judicial system: the presumption of innocence. Although a preponderance of evidence standard is not presuming guilt, it is hardly presuming innocence; only three-fourths of the reviewing panel needs to be 50.1 percent certain that a sexual assault occurred. Some find this acceptable, noting that the same standard is applied to civil cases. But whereas the penalty in a civil suit is monetary, the internal penalty for sexual assault is often suspension or expulsion. If anything, the consequences of being found responsible in such cases warrant the stronger clear and convincing standard.

While I am in favor of other aspects of the ARP – for instance, I agree that the accused should not have a right to confront the accuser – the preponderance of evidence standard opens the door for innocent students to be found responsible. In a criminal trial, if there is a generally low conviction rate for a given crime, we do not lower the burden of proof. Doing so violates the due process rights of the accused. If the loss of federal funds were not at stake, Stanford would ideally adopt the clear and convincing standard while pursuing other means to encourage sexual assault reporting that do not jeopardize the rights of the accused.


Adam Johnson ’13

Stanford Daily Editorial Board Chair, Vol. 241

  • Dan

    the other side of the coin is that the police at many universities underreport attacks , and underinvestigate for PR purposes. Then, they deprive suspects of basic judicial rights, not to mention rights not to be slandered.  Why not take complaints  out of the Stanford office and give to the Palo Alto police to investigate?

  • ’07

    This logic is much more sound than that of the opposing editorial. If you’re going to ruin someone’s academic career, you better be damn sure that the accusations are valid. Let the actual legal system handle the rest.

  • falserapesociety

    Thank you for this.

  • falserapesociety

    Thank you.

  • 74-75

    at last some sense

  • richards

    Excellent summation of this aggregious state of affairs.

    This is compounded by the trainng materials given to adjudicators on these boards at Stanford.

    This is the complete set of the  Dean’s Administrative Review Process Training Materials, 2010-2011 :-


  • richards

     That is exactly where complaints of this seriousness should go.

  • It’s good to see more people starting to have this conversation. Adam’s write up here is spot on; and it is only the start of the legal and moral questions raised by the OCR’s preponderance mandate. If you think Stanford or other schools should review their policies, I have a detailed write-up of the legal arguments here, collegejustice.org, and also have a template for an open letter you can send to help get the attention of Standford’s administration.

  • Justin

    Lets allow men to accuse women of sexual assault, be taken equally as seriously, not even have to confront her, and have a preponderance of evidence standard. Lets see women’s college career destroyed on the accusation of a man. Lets see how fair they think that is. I bet their logic changes real fast.

  • David

    Thank you for writing this.