Over the last decade, the media has focused a lot of attention on sexual assault and other misconduct on college campuses. This focus has raised questions about students charged and disciplined under a non-judicial system. College students can face serious consequences from school disciplinary proceedings. But while federal and state statutes affect students at some colleges and in some states, the standard of evidence varies between states, schools, and sometimes even offenses.
What is the Standard of Proof?
In the U.S. criminal and civil court system, the standard of proof – also called the standard of evidence – is the amount of evidence necessary to establish proof in a criminal or civil case. The standard of proof for most civil cases is a “preponderance of the evidence” or “clear and convincing evidence,” while in criminal cases, it is “beyond a reasonable doubt.”
- The Preponderance of the Evidence:
Courts typically apply a preponderance of the evidence standard in civil cases. It means “a fact is substantially more probable than not probable.” Meaning, something is more likely true than not. It's also known as a balancing test requiring only that the evidence tip one side of the scale slightly more than the other. It's the lowest standard of proof generally used in court.
- Clear and Convincing Evidence:
The “clear and convincing evidence” standard is also used in civil cases and means sufficient proof to assert that “something is substantially more likely to be true than not to be true.” This standard is a higher standard than the preponderance of the evidence.
- Beyond a Reasonable Doubt:
“Beyond a reasonable doubt” is probably the standard with which many of us are most familiar. It is the standard used in criminal cases where the accused faces the possibility of jail. “It is not a standard of absolute belief and no doubt. There can be some small amount of doubt but sufficiently small that a reasonable person would have virtually no doubt that the fact occurred.”
At first glance, it seems as if student disciplinary cases should use “beyond a reasonable doubt,” particularly in cases where the potential consequences to a student are quite serious, including expulsion or loss of a degree or educational opportunity. However, many schools use the “preponderance of the evidence” standard in disciplinary adjudications. While the consequences of a disciplinary proceeding can be serious, a disciplinary hearing is not a criminal trial, and there is no possibility of prison time resulting from the proceeding. Some schools have adopted the more stringent “clear and convincing evidence” standard in sexual harassment and other cases, depending on the type of violation alleged.
Standard of Proof in Private Universities
Private universities have long held to their own rules and standards rather than those mandated by federal or state law in public colleges. Because public colleges and universities are typically founded and funded by the state government and accept federal funds, courts treat public schools as “state actors.” As such, the due process clause of the 14th Amendment, and a whole host of federal and state laws and regulations, typically protects students at state public schools. One example that looms large in regulating public university disciplinary proceedings is Title IX of the Educational Amendments of 1972 for cases involving sexual harassment and sexual misconduct. (Title IX also looms large in regulating private university disciplinary proceedings for schools that accept federal educational funding as many private colleges and universities do.)
Because private universities are not state actors, students don't have the same constitutional and state protections that they might have at a public university. Still, courts will hold private schools to basic notions of fairness, interpreting the school and students' relationship as a form of contract.
In Schaer v. Brandeis University, the Supreme Judicial Court of Massachusetts looked at one such private school contractual relationship.
Schaer was a student suspended for “unwanted sexual activity” and creating a “hostile environment.” He sued Brandeis seeking injunctive relief and compensatory damages. In ruling for Schaer, the Supreme Judicial Court noted that a university should follow its own rules when disciplining students. In this case, Brandeis “did not substantially conform its disciplinary process” to its procedures as outlined in the “Rights and Responsibilities” section of its student handbook.
So, while the law doesn't hold private schools to the same standards as public schools in disciplinary matters, courts will hold private schools to basic fairness notions. Moreover, private schools must follow the due process laid out in student handbooks. So, a private school or university must follow the standard of proof noted in its disciplinary procedures.
Standard of Proof in Public Universities
Most colleges in the U.S. use a “preponderance of evidence” as the standard of proof needed in student disciplinary cases. While public colleges and universities must offer students the basic protections of due process as state actors, colleges and universities don't conduct criminal trials. School disciplinary proceedings can't result in jail time. As a result, students aren't necessarily entitled to the “beyond all reasonable doubt” due process standard afforded to the accused in criminal trials.
Instead, many schools set their own standards of proof for disciplinary proceedings or set standards following state laws and regulations. (An exception to this is sexual misconduct cases under Title IX, which are guided by federal regulations.) Many schools use either the “preponderance of the evidence” or the “clear and convincing evidence” standards of proof in disciplinary proceedings. While these are standards typically used in civil trials, schools tend to view disciplinary proceedings as akin to a civil matter, even though schools rarely hold themselves to the same rules of civil procedures and evidence used in civil courts.
Standard of Proof in Sexual Misconduct Cases
When a student's alleged misconduct is sexual, federal regulations for Title IX cases apply, with a specific standard of proof. But many states have also passed laws regarding the required due process for sexual-related student disciplinary cases.
- What is Title IX?
Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a federal civil rights law that prohibits discrimination based on sex in federally funded education programs. Title IX applies to public kindergarten through grade 12 schools and public and state colleges and universities. Title IX can also apply to private colleges and universities that accept federal funding. Title IX prohibits discrimination based on sex during admissions, athletics, obtaining benefits, and employment. Sexual harassment, stalking, and sexual assault are also violations of Title IX.
- Standards of Evidence
Until recently, Title IX regulations required schools to use the “preponderance of the evidence” standard of proof. Meaning the arbiters had to find it slightly more likely than not that an accused was responsible for the accused conduct. At one point, some schools were already using the higher “clear and convincing evidence” or “beyond a reasonable doubt” standard. In fact, before federal guidance around Title IX made a “preponderance of the evidence” the standard in Title IX cases, most schools were already using that standard or a higher standard. Federal guidance regarding Title IX regulations led to those schools lowering their standard of proof to “preponderance of the evidence,” making it more likely a student could be found responsible for an offense.
In August of 2020, new Title IX regulations went into effect. The new regulations changed the standard of proof used in sexual misconduct allegations from a “preponderance of the evidence.” Now, schools can select either the “preponderance of the evidence” or a higher “clear and convincing standard.” Schools must apply school the same standard to all students and employees, including faculty.
Nationwide Student Discipline Defense
If you or your child are facing a student disciplinary matter, it's important to hire an attorney-advisor well versed in student discipline cases and student rights. Attorney Joseph D. Lento has handled thousands of student disciplinary matters at schools across the country. He works hard to ensure that his clients receive the due process they deserve. Contact the Lento Law Firm at 888-536-3686 for a consultation.