On Aug. 24, Associate Provost and Dean of Students Mark Bandas sent an email to all Vanderbilt students notifying them of revisions to the university’s sexual misconduct policy. The university made these changes in response to a “Dear Colleague” letter sent by the U.S. Department of Education’s Office for Civil Rights (OCR) in April 2011. Last September, I penned an article in The Vanderbilt Torch discussing how the OCR guidance letter threatens due process for college students nationwide. It now seems fitting to revisit the concerns I highlighted in that article.
First, the OCR letter requires any college or university that accepts federal funding to adjudicate cases of sexual misconduct using the “preponderance of the evidence” or “more likely than not” standard. Under such a low evidentiary standard, a student accused of rape could be found guilty even if 49.99 percent of the evidence suggests that that student is innocent.
However, this part of the letter has not caused any policy changes because Vanderbilt has been operating with a “preponderance of the evidence” standard since December 2008. Prior to that, Vanderbilt had been using the "clear and convincing evidence" standard, which requires more evidence against the accused than the “preponderance of the evidence” standard but less evidence than the “beyond a reasonable doubt” standard used by the criminal justice system. The Editor of The Vanderbilt Hustler at that time, Michael Warren, wrote an editorial petitioning the university to reconsider the change. Mr. Warren warned that the newer standard offered “less protection for the accused from potential false accusations of sexual misconduct in exchange for easier convictions for alleged sexual aggressors.”
Unfortunately, it appears that the OCR letter has legitimized this lower standard. Schools are now unlikely to operate using a standard any higher than “preponderance of the evidence.” Under the eyes of the OCR, a school using a higher standard is potentially in violation of Title IX and risks losing federal funding.
Secondly, the letter also requires institutions to provide the accuser the right to appeal if the accused is also provided that right. As I mentioned in my Torch article, this means that a student already proven innocent could be forced to endure the emotional distress of another hearing. Again, “the procedure resembles a clear violation of the Fifth Amendment right against being ‘subject for the same offense to be twice put in jeopardy of life or limb,’ also known as ‘double jeopardy.’”
Fortunately, the revised sexual misconduct policy retains the limited specific grounds for appeal contained in the original misconduct policy. These grounds were “Procedural irregularities sufficient to affect the determination of the original hearing authority,” “Insufficient evidence to support the decision of the original hearing authority,” “Harshness of the penalty imposed by the original hearing authority sufficient to show an abuse of discretion by that authority,” and “New evidence that was not reasonably available for presentation to the original hearing authority, the introduction of which would reasonably be expected to affect the decision of the original hearing authority.” At least these specific grounds are reasonable and prevent accusers from demanding a new hearing simply based on a whim.
While the worst case scenario has not occurred at Vanderbilt, the OCR letter still poses a dangerous threat to students’ due process rights at Vanderbilt and at hundreds of other American institutions. The “preponderance of the evidence” standard will undoubtedly make it easier to falsely convict innocent students. This, combined with the ability to appeal verdicts that find accused students not guilty, will result in even worse consequences. National organizations including the Foundation for Individual Rights in Education (FIRE) have done a great job highlighting the problems with the OCR letter and petitioning the OCR to reverse course and take steps to protect students’ rights. To learn more about this ongoing issue, readers can check out the comprehensive list of Frequently Asked Questions and in-depth answers published by FIRE.