September 23, 2015

BURDEN OF PROOF FOR THEE, BUT NOT FOR ME: Ashe Schow: College’s hypocrisy on standard of evidence when it comes to accused students.

A Vermont college was ordered to halt the expulsion of a student who was expelled for sexual assault without being given a hearing. But what the college argued in its defense was rather interesting.

Middlebury College used a “preponderance of evidence” standard (meaning campus administrators have to be just 50.01 percent sure an assault was committed) even before the Department of Education mandated colleges to lower the bar on proof of charges against students. But when it came to defending itself from this student’s lawsuit, the college demanded the higher standard of “clear and convincing” evidence that it had wronged him.

In a footnote of the judge’s decision to halt the expulsion, noticed by Samantha Harris of the Foundation for Individual Rights in Education, the college argued for the higher standard of proof.

“Middlebury argues a higher standard — requiring Plaintiff to demonstrate ‘a clear or substantial likelihood of success on the merits’ — applies because an injunction will provide plaintiff with substantially all the relief sought and the relief cannot be undone and because plaintiff seeks to alter rather than maintain the status quo,” the footnote reads.

The reason the male student was able to get his expulsion halted was that he showed that he would have a “likelihood of success on the merits” and that he would suffer irreparable harm if the federal court did not issue a preliminary injunction.

So, to recap, when accusing students of a felony, a low threshold of evidence is okay, but when accused of unfairness, Middlebury wants the charges to clear a higher bar. Nice legal double standard, if you can get it.

Now that’s just sad.

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