Last week, The New York Times published an article detailing how, in 2015, a majority of two separate panels at Stanford University found that a student was raped by a football player, but the athlete was not held responsible because the university required a supermajority vote by the hearing panel to do so.
The university, which last year went even further by requiring a unanimous vote in such proceedings, had already been at the center of a national debate on campus sexual assault since June, after a Stanford student was convicted of assaulting a woman on campus in 2015 but spent less than three months in jail. Last week's Times article prompted widespread criticism of the university from advocates for victims of sexual assault, who say the university's process prioritizes the rights of accused students over those they may have assaulted.
“On college campuses, sexual assault is a wrenching subject for our students, and for everyone who works to support students through challenging cases,” the university said in a detailed response to the Times article. “Stanford cares deeply about ensuring that our students are treated fairly and equitably on our campus and throughout our process for dealing with sexual assault. This includes assuring that they receive support and fair treatment when they are involved in any Title IX matter.”
The statement has not quelled the controversy over Stanford's approach -- which appears to be exceedingly rare.
The Association for Student Conduct Administration could recall no other institution that required a supermajority vote, and neither could Culture of Respect, the sexual-assault-prevention arm of NASPA: Student Affairs Administrators in Higher Education, or the Foundation for Individual Rights in Education, an organization that has urged colleges to adopt such policies. Duke University appears to be the only other prominent institution that requires a unanimous vote in its sexual misconduct hearings.
While various guidance documents published by the U.S. Department of Education and its Office for Civil Rights instruct colleges on what standard of proof should be met when adjudicating reports of sexual assault, they do not specify how many members of a hearing panel or student conduct board should be in agreement in order for a student to be found responsible for sexual misconduct.
At some institutions, the ruling is decided by just one person, but at many others the decision is made by a panel, which may include faculty members, administrators and students. This was the case in 2015 at Stanford, where the panels consisted of five people, four of whom had to agree a student was responsible for the misconduct. The panels now consist of three members, all of whom must agree a student is responsible. Most colleges that use hearing panels follow the advice of a 2004 journal article written by Edward Stoner and John Wesley Lowery, two longtime legal and student conduct experts.
Published in the Journal of College and University Law, the Model Student Conduct Code states that colleges with student conduct boards that consist of more than one person should determine responsibility for violating conduct rules by a majority vote, not a supermajority or unanimous decision. But, as sexual assault is a more serious charge than other forms of misconduct, such as cheating, some colleges administrators have grown uncomfortable with requiring only a majority vote in those hearings -- in particular because colleges already use a lower standard of proof known as preponderance of evidence.
Where criminal procedures use the standard known as "beyond reasonable doubt," most colleges have used either the preponderance of evidence standard or, to a lesser extent, another standard called "clear and convincing." The preponderance of evidence standard, as it is generally understood, requires a “more likely than not” -- or a 50.1 percent -- chance that the accused is responsible. There's less agreement on how to communicate the clear and convincing standard numerically, but most legal experts say the threshold should be at least 75 percent.
In 2011, the Education Department’s Office for Civil Rights released a Dear Colleague letter instructing colleges to use a preponderance of evidence standard if they weren’t already. The vast majority of colleges were already using the standard prior to the 2011 letter, however, and indeed were also using it prior to 2004, when Stoner and Lowery similarly endorsed the standard.
In a statement, Stanford said that its use of the lower evidentiary standard was a factor in how it created both its former and current policies. “The precise workings of the process are aimed at balancing the rights of both the accuser and the accused in the context of the less stringent standard of ‘preponderance of evidence,’” the university stated.
Stanford’s previous policy, the university said, was similar to the requirement for civil liability in California’s court system, where nine of 12 jurors must agree on a person’s liability using the preponderance of evidence standard. In 2016, Stanford adopted the new process in which three panelists must reach a unanimous decision, with a task force concluding that the new policy would protect “both fairness as well as the perception of fairness.”
So far, “there has been no case where a split vote has prevented a finding of liability,” Stanford stated.
Duke University has required a unanimous vote from a three-person panel in its sexual misconduct hearings since 2003. Larry Moneta, Duke’s vice president for student affairs, said this week that the policy has largely been without controversy and that the university was unaware it was in such rare company.
“Our approach is based on an analysis, done years ago, of what we believe to be the best practice for accountability,” Moneta said. “It wasn’t based on discussions over evidentiary standards, but on what is a fair and equitable approach for resolutions of an allegation. It was just a Duke decision that we wanted to be sure there was agreement on the outcome for something so serious.”
The Foundation for Individual Rights in Education has long been in favor of colleges requiring a supermajority or unanimous vote in all campus hearings, not just those involving sexual assault. The organization is currently surveying colleges to see how many might have such a policy in place, but Samantha Harris, FIRE’s director of policy research, said the group already knows the requirement is “not terribly common.”
“Campuses don’t want their judicial systems to operate in the same ways courts of law do and generally want them to be more accessible to students who feel they have been wronged,” Harris said. “The problem is that colleges are increasingly adjudicating claims that also involve potentially criminal conduct, so this disparity becomes troubling. Unanimity should be required for suspension or expulsion, particularly when you are using the lower preponderance of evidence standard. Otherwise, you are suspending or expelling someone based on the fact that only half of a group of people think someone was more likely than not to have done something.”
Victims’ advocates and many student conduct officials argue, however, that even though allegations of sexual assault are serious, the punishment is still not of a criminal nature and the hearing process should reflect that. Laura Bennett, president of the Association for Student Conduct Administration, said it’s up to individual institutions to decide what policies work best, but she said colleges should still consider the conclusions found in the Model Student Conduct Code even when dealing with sexual assault.
“As a campus conduct proceeding need not be like a courtroom, there does not need to be complete consensus among a panel to find that someone has committed a policy violation,” Bennett said. “We encourage institutions to consider this issue in light of what constitutes the most equitable and fair resolution process for all of the involved students.”
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