Skip to content
ADVERTISEMENT
Sign In
  • Sections
    • News
    • Advice
    • The Review
  • Topics
    • Data
    • Diversity, Equity, & Inclusion
    • Finance & Operations
    • International
    • Leadership & Governance
    • Teaching & Learning
    • Scholarship & Research
    • Student Success
    • Technology
    • Transitions
    • The Workplace
  • Magazine
    • Current Issue
    • Special Issues
    • Podcast: College Matters from The Chronicle
  • Newsletters
  • Virtual Events
  • Ask Chron
  • Store
    • Featured Products
    • Reports
    • Data
    • Collections
    • Back Issues
  • Jobs
    • Find a Job
    • Post a Job
    • Professional Development
    • Career Resources
    • Virtual Career Fair
  • More
  • Sections
    • News
    • Advice
    • The Review
  • Topics
    • Data
    • Diversity, Equity, & Inclusion
    • Finance & Operations
    • International
    • Leadership & Governance
    • Teaching & Learning
    • Scholarship & Research
    • Student Success
    • Technology
    • Transitions
    • The Workplace
  • Magazine
    • Current Issue
    • Special Issues
    • Podcast: College Matters from The Chronicle
  • Newsletters
  • Virtual Events
  • Ask Chron
  • Store
    • Featured Products
    • Reports
    • Data
    • Collections
    • Back Issues
  • Jobs
    • Find a Job
    • Post a Job
    • Professional Development
    • Career Resources
    • Virtual Career Fair
    Upcoming Events:
    An AI-Driven Work Force
    University Transformation
Sign In
Commentary

Campus Is a Poor Court for Students Facing Sexual-Misconduct Charges

By Joseph Cohn October 1, 2012
Campus Is a Poor Court for Students Facing Sexual-Misconduct Charges 1
Gwenda Kaczor for The Chronicle

As student-conduct administrators nationwide know all too well, the Department of Education’s Office for Civil Rights required in a letter issued last April that institutions adopt our judiciary’s lowest standard of proof—the “preponderance of evidence” standard—for use in campus sexual-misconduct hearings, which handle allegations ranging from sexual harassment to sexual assault and rape.

To continue reading for FREE, please sign in.

Sign In

Or subscribe now to read with unlimited access for as low as $10/month.

Don’t have an account? Sign up now.

A free account provides you access to a limited number of free articles each month, plus newsletters, job postings, salary data, and exclusive store discounts.

Sign Up

As student-conduct administrators nationwide know all too well, the Department of Education’s Office for Civil Rights required in a letter issued last April that institutions adopt our judiciary’s lowest standard of proof—the “preponderance of evidence” standard—for use in campus sexual-misconduct hearings, which handle allegations ranging from sexual harassment to sexual assault and rape.

Under the new standard, if it is determined that an accuser’s claims are a fraction of a percent more likely to be true than false, the accused may be subjected to discipline, including expulsion.

Unfortunately for students’ rights, a long line of institutions have adopted this low standard under federal pressure. In fact, a review of policies at 198 of the colleges ranked this year by U.S. News & World Report reveals that 30 institutions—including Yale University, Stanford University, and the University of Virginia—have changed their standards of proof following OCR’s mandate.

That’s too bad, because colleges should be free to grant their students more robust due-process rights—and the federal government should not stand in their way.

Previous instructions from the Office for Civil Rights 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.”

Now OCR and its defenders are arguing that the preponderance-of-evidence standard is appropriate for adjudicating campus sexual-assault and sexual-harassment claims because it is the same standard that federal courts use when deciding civil lawsuits, including civil-rights lawsuits. Comparing college disciplinary hearings to civil lawsuits may be an attractive analogy, but is it accurate?

While it is true that most civil cases in federal court are decided under the preponderance standard, due process requires that this low burden of proof be offset by procedural safeguards—lots of them.

For example, to ensure fairness, reliability, and constitutionality, civil trials are presided over by experienced, impartial, and legally educated judges. At either party’s request, facts are determined by a jury of one’s peers. The parties have the right to representation by counsel, and a mandatory process of “discovery” ensures that all relevant evidence will be made available if the opposing party asks for it.

And speaking of evidence, strict rules apply that exclude hearsay, evidence of prior bad acts or crimes, and other information that is either irrelevant or unreliable. Moreover, all depositions and testimonies are given under oath or affirmation, with witnesses subject to perjury charges if they intentionally lie about material issues. The list goes on and on.

So which of those procedural protections are guaranteed in college disciplinary hearings? None. The procedural safeguards used at most colleges are embarrassingly minimal.

ADVERTISEMENT

Colleges decide for themselves who will preside over these hearings and serve as fact finders. In some instances it’s a panel of faculty, students, and/or administrators, the last of whom may have a powerful incentive to come to the conclusion that is most convenient for the institution. (In the real court system, we are very careful to avoid any hint of this bias from our judges and juries.) Even worse, some colleges have a single administrator designated to serve as both judge and jury.

Similarly, the parties to these hearings frequently have no right to counsel—even if they are able to pay for representation. Neither party has the benefit of discovery, and the rules of evidence don’t apply. Hearsay and even irrelevant “evidence” are regularly considered. Parties are usually not placed under oath and may not be subject to discipline if they lie.

Without any of the safeguards designed to increase the reliability and fairness of civil trials, the risk of erroneous findings of guilt increases substantially, especially when a fact finder is asked to decide only if it is merely 50.01 percent more likely that a sexual assault occurred. The absence of the protections listed above makes the preponderance standard inappropriate and renders the comparison of campus sexual-misconduct hearings to civil suits in federal court inexact.

If anything, because there are so few procedural protections in place during sexual-misconduct hearings on campuses, the burden of proof should be higher, to offset the increased risk of error. After all, a guilty finding for sexual misconduct on campus may result in life- and career-altering punishment. And mistakes have been made. In one case, the University of North Dakota banned a student from the institution for sexual assault despite the fact that the Grand Forks police refused to charge him with a crime and in fact charged his accuser with making a false claim. The university eventually reversed its ruling, but only after it was faced with significant public pressure.

ADVERTISEMENT

One other important feature distinguishes civil lawsuits from campus proceedings: Civil suits can be settled for money and kept confidential. Yet students accused of sexual misconduct cannot simply settle the case for money and stay in school. Preponderance advocates should ask themselves why this is so. If the answer is that campus sexual misconduct is more like a crime (with a victim and alleged perpetrator) than a civil dispute (with a plaintiff and defendant)—as is certainly the case—then why is the preponderance standard sufficient for charges of sexual misconduct on campus?

Given the laundry list of procedural safeguards present in civil trials but absent in college sexual misconduct hearings, and the difference between civil disputes and sexual misconduct, is it fair to argue that simply because the preponderance standard is used by federal courts deciding civil-rights cases, it must therefore be fair to use in college sexual-misconduct hearings? Only if you think it’s fair to compare apples to oranges—and only if you are untroubled by expulsions of innocent students.

We welcome your thoughts and questions about this article. Please email the editors or submit a letter for publication.
Tags
Opinion
Share
  • Twitter
  • LinkedIn
  • Facebook
  • Email
ADVERTISEMENT
ADVERTISEMENT

More News

Black and white photo of the Morrill Hall building on the University of Minnesota campus with red covering one side.
Finance & operations
U. of Minnesota Tries to Soften the Blow of Tuition Hikes, Budget Cuts With Faculty Benefits
Photo illustration showing a figurine of a football player with a large price tag on it.
Athletics
Loans, Fees, and TV Money: Where Colleges Are Finding the Funds to Pay Athletes
Photo illustration of a donation jar turned on it's side, with coins spilling out.
Access & Affordability
Congressional Republicans Want to End Grad PLUS Loans. How Might It Affect Your Campus?
Florida Commissioner of Education Manny Diaz, Jr. delivers remarks during the State Board of Education meeting at Winter Park High School, Wednesday, March 27, 2024.
Executive Privilege
In Florida, University Presidents’ Pay Goes Up. Is Politics to Blame?

From The Review

Photo-based illustration of a tentacle holding a microscope
The Review | Essay
In Defense of ‘Silly’ Science
By Carly Anne York
Illustration showing a graduate's hand holding a college diploma and another hand but a vote into a ballot box
The Review | Essay
Civics Education Is Back. It Shouldn’t Belong to Conservatives.
By Timothy Messer-Kruse
Photo-based illustration of a hedges shaped like dollar signs in various degrees of having been over-trimmed by a shadowed Donald Trump figure carrying hedge trimmers.
The Review | Essay
What Will Be Left of Higher Ed in Four Years?
By Brendan Cantwell

Upcoming Events

Plain_Acuity_DurableSkills_VF.png
Why Employers Value ‘Durable’ Skills
Warwick_Leadership_Javi.png
University Transformation: A Global Leadership Perspective
Lead With Insight
  • Explore Content
    • Latest News
    • Newsletters
    • Letters
    • Free Reports and Guides
    • Professional Development
    • Virtual Events
    • Chronicle Store
    • Chronicle Intelligence
    • Jobs in Higher Education
    • Post a Job
  • Know The Chronicle
    • About Us
    • Vision, Mission, Values
    • DEI at The Chronicle
    • Write for Us
    • Work at The Chronicle
    • Our Reporting Process
    • Advertise With Us
    • Brand Studio
    • Accessibility Statement
  • Account and Access
    • Manage Your Account
    • Manage Newsletters
    • Individual Subscriptions
    • Group and Institutional Access
    • Subscription & Account FAQ
  • Get Support
    • Contact Us
    • Reprints & Permissions
    • User Agreement
    • Terms and Conditions
    • Privacy Policy
    • California Privacy Policy
    • Do Not Sell My Personal Information
1255 23rd Street, N.W. Washington, D.C. 20037
© 2025 The Chronicle of Higher Education
The Chronicle of Higher Education is academe’s most trusted resource for independent journalism, career development, and forward-looking intelligence. Our readers lead, teach, learn, and innovate with insights from The Chronicle.
Follow Us
  • twitter
  • instagram
  • youtube
  • facebook
  • linkedin