By KC Johnson
Students at Stanford are the latest to fall victim to the assault on due process mandated by the "Dear Colleague" letter. Last week, the university's faculty senate approved the "Alternative Review Process," an across-the-board diminution of due process rights for Stanford students accused of sexual assault.
The Office of Civil Rights' "Dear Colleague" letter, to review, mandates that colleges lower due process in two respects: weakening the burden of proof from the clear and convincing standard to the preponderance of evidence standard; and introducing a form of double jeopardy by allowing accusers to appeal when an accused student is found not guilty in a college disciplinary process. In addition, the letter strongly encourages a third change--prohibiting an accused student from cross-examining his accuser--that, when coupled with the usual requirement that accused students not be represented by counsel in disciplinary proceedings, effectively ensures that no cross-examination of the accuser will occur.
Stanford's ARP implements each of these OCR proposals. But, like most schools that have eagerly adopted the Dear Colleague approach, Stanford goes beyond even what OCR has demanded in weakening due process for accused students. For instance, through the ARP, students are judged by a five-person panel of "reviewers," but can be found guilty by a vote of 4-to-1. (Even the "Dear Colleague" letter doesn't require non-unanimous verdicts.) So if 80 percent of the review panel believes, with a 50.01 percent level of certainty, in an accused student's guilt, Stanford can brand him a rapist.
Who exactly are these "reviewers"? I testified (via Skype) against the ARP. A pro-ARP witness assured the student government that it need not worry about weakening due process protections, because in his experience, no student accused of sexual assault at Stanford was innocent anyway. Moreover, he noted, the university specially trained the disciplinary panels on sexual assault cases to ensure that the panels would be able to discern the truth.
A couple of years ago, FIRE was able to obtain the "training" material used in the 2010-2011 academic year; among other things, Stanford encourages ARP jurors to view an accused student presenting his case in a "persuasive and logical" fashion as an indication of guilt. Even the "Dear Colleague" letter doesn't claim that acting logically is a sign of guilt.
In an Orwellian fashion, law professor Michele Dauber, who co-chairs the university's Board of Judicial Affairs, celebrated the changes, arguing that as the local prosecutor's office does "not tend to bring charges in college acquaintance rape cases," Stanford needed to act on its own. She rejoiced that since the ARP had been adopted on a trial basis, Stanford had "more than triple the number of [findings of responsibility] in just the last three years compared with the last 13 years combined."
You don't need to be a law professor to understand that lowering the burden of proof, ending unanimity to find guilt, preventing an accused student from cross-examining his accusers, and introducing double jeopardy will increase the chances of a guilty finding. Such changes will also increase, dramatically, the chances of an innocent student being deemed a rapist. But neither Professor Dauber nor her Stanford colleagues appear to worry about that.