Suspension Isn’t Enough

Article here. Excerpt:

'Duke is one of a few schools with a tough new policy: If a student is found culpable for sexual misconduct, expulsion is the presumptive punishment. Most schools haven’t gone that far. Universities want to support victims, but they don’t want to freeze out the perpetrators. They get blamed both for not taking alleged victims seriously, and for not doing enough to protect the rights of the accused. A finding of culpability with a lenient sanction is one way to split the difference. But it’s an uneasy compromise that causes its own set of problems, as a case that unfolded this spring at Stanford shows.
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Stanford law professor Michele Dauber, who helped design the ARP as the faculty chair of Stanford’s Board of Judicial Affairs, told me that many more students are making complaints than did so under the old system. That’s true nationally as well since the DoE letter clarifying the standard. Dauber thinks preponderance of the evidence is sufficient. “Reviewers are very careful and want to do the right thing,” she said. “No one thinks, ‘this guy is 51 percent responsible, so let’s throw him out of college.’”

But the preponderance standard is controversial, because it’s a relatively low threshold. Stanford used to use “beyond a reasonable doubt,” the standard for criminal conviction. Other schools used “clear and convincing,” which meant that adjudicators had to find that the sexual assault or harassment was “highly probable or reasonably certain.” Combined with procedural changes, like eliminating direct cross-examination, the lower burden of proof raises fears that male students will be falsely accused and railroaded by inept university panels, which, after all, are not made up of legal professionals. “They’re trying to set up a much lower-quality shadow justice system on campus,” said Robert Shibley, senior vice president of the Foundation for Individual Rights in Education, in an excellent piece by Michelle Goldberg in the Nation.'