The Department of Education’s infamous 2011 “Dear Colleague” letter made waves for dictating the preferred (read: lower) “standard of proof in campus disciplinary proceedings” on college campuses nationwide. Six years later, the letter remains as divisive as ever—but one college president has given us a sterling example of how not to defend it.
Brooklyn College president Michelle Anderson “promoted fallacies about the law in order to justify federal micromanagement of school discipline,” according to Hans Bader at the Competitive Enterprise Institute.
Writing at CEI, Bader takes issue with one of Anderson’s claims about the regulation—her assertion that the diktat’s “preponderance of evidence” standard is “the standard of proof that applies throughout our justice system, except when life or liberty is at stake.” Bader points out that “the civil justice system uses the clear-and-convincing evidence standard for many matters.”
“I don’t know,” Bader writes, “how Ms. Anderson could have taught law (as she did for years) without learning this basic legal reality.”
Most states, Bader writes, use the higher “clear and convincing evidence” standard “before punitive damages can be awarded” in a court case. Additionally, as Bader wrote several years ago, “The clear and convincing evidence standard is often used for cases such as license suspensions and many issues involving fraud, punitive damages, wills or family decisions.”
Anderson’s assertion that campus disciplinary proceedings must apply a preponderance standard “has no logical or historical basis,” Bader says. Colleges, he writes, “used a higher standard in campus disciplinary proceedings for many years, without any objection from the courts.” This arrangement, he points out, was bolstered earlier this year by federal appellate judge Jose Cabranes in a Washington Post op-ed.
Although colleges stopped using the clear-and-convincing standard for sexual harassment and assault allegations after the Education Department ordered them to in 2011, many of them (such as Duke University, or the University of Virginia’s Honor System) still use that higher standard of proof for other types of allegations, such as vandalism, non-sexual assaults, or honor code violations.
The April 4, 2011 “Dear Colleague” letter that Anderson defends also contains more disturbing forms of federal micromanagement, as noted earlier, along with bad legal advice for colleges. It encouraged colleges to restrict cross-examination by the accused, even though the Supreme Court called cross-examination the “greatest legal engine ever invented for the discovery of truth” in its decision in Lilly v. Virginia, 527 U.S. 116, 124 (1999) – and campus cross-examination is also a specifically protected right under some state Administrative Procedure Acts. In a departure from longstanding Education Department policy, it also demanded that colleges regulate off-campus conduct (which led to people being investigated for sexual harassment for off-campus speech about sexual issues, such as an essay criticizing campus “sexual paranoia” in the Chronicle of Higher Education). And it ignored past agency rulings by demanding that colleges allow complainants to appeal not-guilty verdicts unless the accused is barred from appealing (which critics viewed as akin to double jeopardy).
Anderson is not troubled by any of this federal overreaching. Although she doesn’t explain why the standard of proof should be the same in campus disciplinary proceedings as in civil litigation, the Education Department tried to justify this position in its April 4, 2011 letter. It reasoned that the lower “preponderance” standard was “the standard of proof established for violations of civil-rights laws” in lawsuits brought in federal court. Therefore, it claimed, preponderance must also be “the appropriate standard for” schools to use in “investigating allegations of sexual harassment or violence.’”
But as discussed earlier, that is a red herring, since the mere existence of harassment or assault by a student (as proven by a preponderance of evidence) doesn’t give rise to liability on the part of the school; only the school’s faulty response to it can. Liability under Title IX is based on whether the school mishandled sexual harassment or assault allegations, not whether students engaged in harassment. Students cannot violate Title IX; only schools can be sued under Title IX, not individuals…
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