FIRE (and other groups, include the ABA Task Force) have repeatedly attacked the preponderance standard because although it is the civil standard, the campus and school resolution process lacks many of the other procedural protections that civil trials have, which protect due process. I think we need to be pushing back as an association and as a field, about that premise, because it is flawed. Sure, college resolution proceedings don’t have formal rules of evidence or the right to representation by attorneys, but campus processes are not without procedural rigor. Without being exhaustive:
- Colleges offer the equivalent of informal discovery (a major procedural protection), by being transparent during the process about what investigators are learning, by sharing documents with the parties, and ultimately showing the report to the parties before it is finalized;
- Colleges operate under a presumption of innocence (to the extent they operate under a presumption at all);
- Colleges respect the right to remain silent and to avoid self-incrimination;
- Colleges afford the right to be advised by an attorney (at least for the VAWA offenses, and should for all Title IX-covered behaviors, not to mention any separation-level offense);
- Colleges respect key procedural rules, including requiring that evidence be relevant and credible, and that prior sexual history and character evidence is rarely admissible;
- Colleges allow and seek expert evidence and testimony as needed;
- Colleges allow questioning of the parties, if not cross-examination in its purest form.
- Colleges assure sanctions that are proportionate to the severity of the misconduct;
- Colleges almost always permit appeals.
I think this is enough and should be enough to satisfy a judge, but colleges and universities need to do a better job of driving the dialogue about how much due process they DO afford, rather than letting FIRE paint the field publicly as not according procedural protections akin to civil proceedings. The protections are not identical, but neither do they need to be. They are extensive.
Brett A. Sokolow, Esq.