Since November 2011, accusations of sexual misconduct at Stanford University have been adjudicated under a temporary “Alternate Review Process” (ARP) that reduces the standard of evidence from “beyond a reasonable doubt” to the lower “preponderance of the evidence.” The current standard is, in other words, “more likely than not,” or with 50.01% certainty. As The Daily’s readers undoubtedly know, the ASSU Undergraduate Senate and Graduate Student Council are considering changing the university’s charter (which requires the higher standard) in order to adopt the ARP permanently. Doing so would be a mistake.
Advocates for the preponderance standard argue that sexual misconduct is commonplace at universities, including Stanford, in part because victims of sexual misconduct allegedly do not receive a fair shot at proving their claims when the burden of proof requires more than 50.01% certainty. As a result, these advocates argue, victims choose not to bring claims forward at all.
This argument may be attractive, but it does not withstand scrutiny.
There is no doubt that sexual misconduct occurs on campus and must always be taken seriously. Data suggests that sexual crimes are often underreported, perhaps because of victims’ perceptions that their complaints will be ignored. But a university that provides immediate support to every alleged victim, conducts a prompt and thorough investigation, and provides a fair hearing to the accused – even one employing a higher burden of proof – is in no way ignoring a victim’s allegation. There need be no tension between a university’s moral and legal obligation to respond to every allegation of sexual misconduct in a prompt, thorough way and the corresponding obligation to ensure that accused students receive appropriate due process protections.
Nevertheless, preponderance advocates insist that high standards of proof are to blame for the underreporting. This is a simple narrative, but likely untrue. Some colleges have been using the preponderance standard for years, yet advocates have provided no evidence that reporting statistics at those schools are distinguishable from those at institutions employing higher burdens of proof.
Even apart from the question of reporting, the fundamental problem with employing the preponderance of the evidence standard to adjudicate sexual misconduct allegations is that punishing a student because a fact-finder thought that they were 50.01% likely to be guilty – indeed, finding that the accused was a mere .01% more likely than not to be responsible – offends our time-honored conception of justice. After all, 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 amounts to just a hunch that the accused is guilty. Long-established principles of justice demand a system where more than a hunch is required before imposing life-altering discipline.
Compounding the problem further, Stanford fails to define sexual harassment in a manner consistent with Supreme Court precedent aimed at ensuring that protected speech isn’t swept into the definition. A vague definition of sexual harassment and a low burden of proof is a proven recipe for error.
The problems with preponderance are amplified because there are few additional safeguards to ensure that findings are reliable. Unlike courts, where there are many protections provided to ensure basic fairness, like the right to counsel, rules of evidence excluding irrelevant testimony and hearsay, discovery, witnesses under oath subject to perjury charges if they lie and so forth, the campus judiciary’s most meaningful procedural protection is the burden of proof. Gutting that safeguard invites injustice.
Some argue that Stanford must make this change or it will lose federal funding. While it is true that the Department of Education’s Office for Civil Rights (OCR) may try to strip Stanford of its funding if it does not fall in line, it is hardly likely that the OCR would prevail. Remember, nothing in Title IX mandates the preponderance standard. Stanford owes it to its students to decide for itself what system best protects their interests. 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. The preponderance standard, especially when implemented without meaningful due process protections, requires less certainty and thus fails that crucial test.
Joseph Cohn, Legislative & Policy Director for the Foundation for Individual Rights in Education
Greg Lukianoff J.D. ‘00, President of the Foundation for Individual Rights in Education