A college student is accused of rape or sexual harassment by a classmate and denies the allegation. A campus investigation follows. At the end of the process, the presiding administrator must judge whether the charges against the accused have merit.

What standard of proof should be used?

That’s one of the key questions posed in Doe v. Lhamon, a federal lawsuit filed by a former University of Virginia law student and the Foundation of Individual Rights in Education.

The lawsuit seeks to overturn recent efforts by the Department of Education to lower the standard of proof in sexual-misconduct cases, forcing institutions of higher education to determine culpability based on a “preponderance of the evidence.” Under that standard, students are found culpable and punished if the chance that sexual misconduct occurred is even slightly more likely than that it did not occur.

In criminal cases, allegations must be proved “beyond a reasonable doubt.”

Prior to the Department of Education’s push, many institutions of higher education required “clear and convincing evidence” to find a student guilty of sexual misconduct.

Princeton University required “clear and persuasive evidence.”

But starting in 2011, the Department of Education’s Office of Civil Rights began to insist that colleges would run afoul of Title IX and risk losing federal funding unless they adjudicated cases using the weaker “preponderance of the evidence” standard.

A 2014 communication reaffirmed the change.

The Department of Education’s actions were part of a larger effort to decrease sexual assault on college campuses by threatening institutions with the loss of federal funds if they didn’t making sweeping changes to their disciplinary procedures.

Most institutions complied. But critics say that students are now being denied due process. After Harvard University revised its sexual-misconduct policy, for example, numerous members of its law faculty signed a protest letter declaring that “we find the new sexual harassment policy inconsistent with many of the most basic principles we teach. We also find the process by which this policy was decided and imposed on all parts of the university inconsistent with the finest traditions of Harvard University, of faculty governance, and of academic freedom.”

Another group of law professors from numerous institutions of higher education co-signed an open letter objecting that the Office of Civil Rights “unlawfully expanded the nature and scope of institutions’ responsibility to address sexual harassment”––a procedural objection––“thereby compelling institutions to choose between fundamental fairness for students and their continued acceptance of federal funding.”

They added:

...relentless pressure on institutions to respond aggressively to sexual assault allegations has undermined the neutrality of many campus investigators and adjudicators by forcing them to consider the broader financial impact of their actions. In an effort to preclude a costly Title IX investigation, some institutions interrogate accused students before informing them of the specific conduct code they are alleged to have violated and many deny them access to witnesses or potentially exculpatory evidence. In the aftermath, innocent suspended and expelled students have become mired “in academic and professional
limbo,” impairing or destroying their access to a college education, thereby relegating them to a lifetime of diminished income and social stigmatization as sexual offenders.

Some students who were found guilty in campus proceedings sued their colleges, claiming that their due process rights were violated, and won victories in court.

The complaint in Doe v. Lhamon states that the plaintiff, John Doe, had a sexual encounter with Jane Roe on August 23, 2013. A year-and-a-half later, on March 6, 2015, Roe alleged misconduct, saying that due to alcohol consumption she could not consent to sexual activity. Doe responded that on the night in question, Roe did not appear to be intoxicated let alone incapacitated. UVA investigated the matter.

Previously, the university had used a “clear and convincing” standard. According to an old student handbook, that standard “means that the claim is highly probable and has produced a firm belief or conviction that the allegations in question are true.” But due to changes undertaken at the behest of the Department of Education, the Doe case was decided on the “preponderance of the evidence.”

Says the complaint:

On January 20, 2016, Ms. Roe’s claims were adjudicated during a nine-hour hearing.

The adjudicator––a retired justice of the Supreme Court of Pennsylvania––called the matter a “very close” and “very difficult case.” She found Mr. Doe responsible, she said, because the evidence “slightly” tipped in favor of responsibility, and she was “required” by “the Office of Civil Rights and the Department of Education” to apply “the weakest standard of proof” available––preponderance of the evidence––which is satisfied whenever the evidence is “tipped very slightly” in favor of responsibility.

The adjudicator also explained that two other commonly used evidentiary standards––the “clear and convincing” evidence standard and the “reasonable doubt” standard––would “tip the scale much more,” thereby indicating that, but for UVA’s mandated use of the preponderance standard, Mr. Doe would not have been found responsible.

After explaining why, in her view, the evidence before her “made it slightly more likely than not” that Mr. Doe had not properly obtained “effective consent” from Ms. Roe given her intoxication, the adjudicator again emphasized, at the end of her ruling, that the case was a close one. She stated that its closeness “will be reflected by me in any sanction that I impose.”

Ultimately, Doe was sentenced to four months counseling and a lifetime ban from all UVA property and activities. He subsequently took and passed the Virginia State Bar and was awarded his degree. His lawsuit argues that both the ban and what he says is the unjust label of someone who has committed sexual assault will affect him for the rest of his life, and that he would not have been found culpable if not for the lower standard of proof demanded by the Department of Education.

The Foundation for Individual Rights in Education has a substantive interest in the case, declaring in a statement, “OCR has acted as though decreasing due process rights will increase justice. In fact, the opposite is true. Real people’s lives are being irreparably harmed.” But its legal argument is largely procedural––that is, it argues that the Office of Civil Rights is required by law “to notify the public of proposed rules and solicit feedback before imposing new obligations on regulated entities, like colleges and universities. OCR did not fulfill this obligation.”

Put another way, regardless of whether the newly relaxed standard of proof is superior or inferior, FIRE argues that the way in which the federal government imposed it was unlawful––the same procedural objection raised by the law professors in their 2014 letter. Time will tell whether that procedural argument carries the day.

On the substantive question, though, I’ve read about too many cases of wrongful convictions in the criminal-justice system, where the accused are afforded a right-to-counsel and the “beyond a reasonable doubt” standard of proof, to think that “a preponderance of the evidence” is sufficient in proceedings with no right to counsel.

I’m also struck by a little-discussed way in which “beyond a reasonable doubt” and “clear and convincing evidence” differ from “preponderance of the evidence.”

Under the stronger standards, it’s possible to find against an accuser without implying or seeming to imply that he or she is a liar. After all, a “not guilty” finding could mean that there was strong evidence, but that it did not meet the high standard of proof that the institution imposed as a safeguard against wrongly punishing innocents.

Whereas under a “preponderance of the evidence” standard, an adjudicator who finds against an accuser is arguably saying that it’s more likely than not that he or she is lying (though it is technically possible that the evidence is split right down the middle).

I suspect that will cause many adjudicators to feel some pressure, if only self-imposed, to render verdicts that validate the claims of accusers––pressure that either endangers innocents or is a long overdue corrective to “rape culture,” depending on your perspective. I wonder if accusers whose accusations are not validated will find it harder to bear. Regardless, if the “preponderance of the evidence” standard survives both litigation and debate, it ought to at least be paired with procedural reforms that guarantee that the accused on campuses are transparently told the charges against them, given access to evidence, allowed legal representation, and otherwise afforded at least the same rights and safeguards against injustice that they’d have in a civil case with comparable stakes.


An earlier version of this piece erroneously used "burden of proof" rather than "standard of proof" in a few places.