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We have been writing a lot lately about due process in campus sexual assault cases ever since the Department of Education's Office for Civil Rights (OCR) issued last month instructing universities that, in order to comply with federal civil rights laws, university judiciaries must apply a "preponderance of the evidence" standard (roughly 51% proof) when resolving cases of sexual misconduct on campus. As Erica wrote on The Torch last month, making a point discussed in more detail in FIRE's May 5th response to OCR:

The preponderance of the evidence standard, which would allow universities to punish students for offenses like peer-on-peer sexual harassment and sexual assault if the evidence tips above 50 percent in favor of the accuser/alleged victim, is much lower than "the clear and convincing evidence" standard that many university disciplinary proceedings apply and is nowhere near as protective as the presumption of innocence for criminal defendants in a court of law.

As we take a closer look at universities' sexual misconduct procedures, however, it is evident that many of them already fail to provide the basic elements of due process and fair procedure to accused students. At Franklin & Marshall College (F&M), for example, there is no clear standard of proof applied in sexual misconduct cases unless the administration, in its discretion, decides to refer the matter to a hearing. According to the F&M , when a student brings a formal complaint of sexual misconduct, the complaint is investigated by two members of the Sexual Misconduct Committee. Then,

The Senior Associate Dean of the College and the Chair of the Sexual Misconduct Committee review the report from the investigators. Upon review of the summary, the Senior Associate Dean of the College in consultation with the Chair may assign a sanction if violations of the Student Conduct Code are indicated. The Senior Associate Dean and the Chair may also decide to refer the complaint for a hearing. The Senior Associate Dean will normally refer the complaint for a hearing upon request by either the complainant or respondent. (Emphases added.)

While the policy provides that the dean will "normally" call for a hearing if the accused requests one, it also appears that the dean has complete discretion not to do so. While F&M is a private university and thus not legally bound by constitutional requirements, the college purports to protect students' basic rights, stating that "As citizens, students have the same freedoms other citizens enjoy, and they also carry the same obligations and responsibilities as other citizens." Therefore, it is worth noting that the Supreme Court has held that in accordance with the right to due process, students facing possible suspension or expulsion from a university must be given notice of the charges against them and a hearing of some kind. Goss v. Lopez, 419 U.S. 565 (1975).

The policy also specifies no standard of proof that the dean must use when deciding whether or not to "assign a sanction" in the absence of a hearing, leaving the administration with apparently unfettered discretion to decide some of the most serious claims that can be leveled against a student, without reference to any objective evidentiary standard. While we have written much about the problems with the preponderance of the evidence standard, nothing could be worse than having no evidentiary standard at all. F&M students and administrators would both benefit if the college's position on these extremely important disciplinary questions was made clear.

As we consider the impact on students' due process rights of the new OCR guidance, we must also consider the problems with many of these policies as they are already written. FIREwill have much more to come on this topic in the weeks and months ahead.