The Editorial Board is an independent body and decides its opinions separately from the regular staff and editors of The Daily Princetonian. The Board answers only to its Co-Chairs, the Opinion Editor, and the Editor-in-Chief. It can be reached at editorialboard@dailyprincetonian.com.

As sexual assault has become an issue of increasing concern on college campuses and in national politics, the Board has advocated proposals to help prevent assault at Princeton and encouraged students to take the We Speak survey. We must consider a related issue with equal concern: how the University can ensure a fair, impartial process as it adjudicates alleged sexual misconduct. The lack of due process at many institutions is a growing problem. As of July 2015, more than 40 accused students had filed lawsuits against their schools complaining of due process violations, and tragically, this March, a student at the University of Texas at Arlington, Thomas Klocke, committed suicide following his punishment in a sexual harassment hearing that his parents allege violated his legal rights.

We preface this editorial by noting that, due to the seriousness of sexually based offenses, we believe these cases would be best handled within the criminal justice system, rather than by the University. From the accuser’s perspective, an outside court would underscore the severity of the alleged crimes and allow for harsher punishment if the accused were convicted. Trials would also be fairer to the accused than University proceedings, because the justice system includes protections of the United States Constitution, to which Princeton, as a private institution, need not adhere.

However, given that the status quo is far from this ideal, with most sexual misconduct cases reported and investigated on campus, the Board offers recommendations to ensure that Princeton affords accused students a fair hearing and due process. We believe our proposals would also help victims of sexual misconduct by legitimizing the process they use to seek resolution. If the trend of accused students suing their schools continues, campus adjudication bodies will continue to be dismissed as “Star Chambers” and “kangaroo courts.” A more respected and fair process would reduce possible stigma relating to filing a report and to the system more broadly, making it more likely that victims and witnesses would come forward.

We first address the standard of proof by which the University finds a student responsible. Currently, Princeton decides sexual misconduct cases under a “preponderance of evidence” standard; this is the lowest standard possible and holds a student responsible if there is only a 50.1 percent chance, or if it is more likely than not, that the charges are true. Princeton adopted this standard in fall 2014 as part of an agreement with the Department of Education that involved an expansive interpretation of how the federal government can apply Title IX. The decision to adopt the current standard also followed a 2011 “Dear Colleague” letter issued by the Obama Administration that called on educational institutions “to take immediate and effective steps to end sexual harassment and sexual violence,” including lowering the standard of evidence. Princeton previously required a more rigorous standard of “clear and persuasive evidence” to convict in sexual misconduct cases. Moreover, every other campus disciplinary body uses higher standards than preponderance of evidence, including the Committee on Discipline, which uses “clear and persuasive” evidence and the Honor Committee, which uses “overwhelmingly convinced.”

Lowering the burden of proof is a problematic change. As a recent lawsuit an accused student filed against Cornell underscores, sexual misconduct cases often arise under he said-she said circumstances, cases which often also involve alcohol and foggy memories. This may lead to inconsistent and unclear stories from both parties. Preponderance of evidence is an unfairly biased standard because it allows conviction if the accuser's story is marginally more likely to be true than the accused’s, even if the accuracy of both accounts is in question. This is far too low a burden under which to mete out punishments such as suspension or expulsion that would radically alter students’ lives. The Board accordingly advocates a return to the “clear and persuasive” standard of proof, which is rigorous enough to be appropriately fair, but still not as high a metric as the “beyond a reasonable doubt” standard used in U.S. criminal cases. While this would entail disregarding the University’s 2014 agreement with the DOE, returning to the previous standard is essential not only for ensuring our students’ due process, but also for protecting the University from the types of litigation seen at other institutions. Moreover, the Trump Administration may be less likely to apply Title IX as expansively as did the Obama Administration, which would mitigate any potential outside ramifications from the change.

Additionally, sexual misconduct cases at Princeton are currently heard by a three-person panel, only two of whom are required to vote affirmatively to convict. We believe an affirmative vote from all three panelists should be required to find a student responsible. This is particularly important because these cases are often based on subjective personal accounts that lack hard evidence. And given that the panels are assembled in an environment of extreme political pressure for universities to, to quote Obama’s “Dear Colleague” letter, “take immediate and effective steps to” punish more students for sexual misconduct, requiring unanimous judgement would serve as added assurance that the process is objective and fair.

Second, the Board proposes three reforms to the panel’s investigative procedures. Currently, the accused and accuser “may select an adviser of their choice who may accompany them to any meeting or related proceeding, but the adviser may not actively participate in the interview process.” We would move to expand the adviser’s role and allow him or her to participate in the interview by giving the student advice on how to respond to questions. This is important because active counsel is a long-standing and essential component of due process.

Next, the status quo allows either party “to identify individuals who may possess relevant information (and request that such individuals be interviewed).” When a party identifies a witness, this should not merely be a “request that such individuals be interviewed,” but a mandate that the panel interview these individuals. We would also allow both parties to designate questions that must be asked of their witnesses. This would in no way restrict the panel’s ability to determine the course of its investigation; it would merely ensure that the panel is made aware of the information that each party wanted their witnesses to bring to light.

Finally, Princeton’s process perhaps most egregiously violates due process in its exclusion of cross examination, which is a core element of a fair trial. We acknowledge that, due to potential privacy concerns, an in-person examination of witnesses by either party or their advisers may not be feasible. Instead, we propose an alternative mechanism to mimic cross examination. Currently, after the panel completes its interviews, it “prepares a case file of all interview summaries, witness statements, and other documents” that is given to both parties with personal information redacted. The Board proposes that, upon receiving these materials, both sides be able to submit follow-up questions that the panel must ask of previously interviewed witnesses. This would capture some of the benefits of cross examination by allowing each party a chance to call attention to any perceived inconsistencies or inaccuracies in witness statements, while also preserving privacy given the matter’s personal sensitivity.

While we believe sexual misconduct cases would be best addressed in the U.S. legal system, the reforms we propose above — returning to the “clear and persuasive” evidentiary standard, requiring unanimity of the three-person panel to convict, and enacting procedural changes to give students better adviser representation and mimic cross-examination — would help Princeton afford all accused students a fair hearing. The dissent to this editorial has an unexplained aversion to “court-like proceedings,” yet such procedures are designed precisely to provide for fair and equitable outcomes. In an April 2016 ruling regarding a lawsuit by a Brandeis student who alleged due process violations in a sexual misconduct hearing, Judge F. Dennis Saylor wrote that “Brandeis appears to have substantially impaired, if not eliminated, an accused student’s rights to a fair and impartial process ... It is not enough simply to say that such changes are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a ‘victim’ is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.” The Board concurs with this sentiment. While the University continues to bolster its efforts to reduce the incidence of sexual misconduct on campus, it is essential that Princeton concurrently ensures its adjudication process is as fair and impartial as possible, to the benefit of accusers and the accused alike.

DISSENT

While we agree with the majority that the University should use a “clear and persuasive” evidence burden of proof while adjudicating sexual misconduct cases, we disagree with its assertion that “these cases would be best handled in the criminal justice system rather than by the University” and with several of its specific procedural recommendations.

Forcing victims of sexual misconduct to take allegations to the criminal justice system is flawed for two reasons. First, many victims, for various reasons, are unlikely to want to take an allegation to the police. Whether because of students’ desires to keep their experiences private or by hesitance to have fellow students charged with crimes, this aversion to involving the criminal justice system will result in fewer victims coming forward, harming efforts to destigmatize bringing these incidents to light. Second, this assertion ignores the interests of the University in enforcing community standards. Though some incidents of sexual misconduct carry a criminal penalty, the University also has an interest in investigating and dealing with these incidents on campus independent of the criminal justice system. There are also incidents of sexual misconduct that are legal but not allowed on campus under Rights, Rules, Responsibilities. Princeton is a residential and social community, and certain norms should be enforced to make all students feel welcome in this learning environment. By creating a way for victims to come forward and report allegations on campus for investigation outside the criminal justice system, Princeton makes it more likely that perpetrators of sexual misconduct will be punished for their actions.

In general, the majority also attempts an unnecessary micromanagement of specific details of University sexual misconduct proceedings. The University’s Title IX investigations are not meant to act as a court in the fashion of the criminal justice system. Instead, the University is investigating, through a three-member panel, whether a violation of the sexual misconduct policy that is outlined in RRR has occurred. Both of the disciplinary committees cited by the majority, the Honor Committee and the Committee on Discipline, do not require consensus to find a student responsible under a “clear and persuasive” evidence standard. The assertion, then, that students should only be found responsible for sexual misconduct through a unanimous vote of an investigative panel is divorced from current practice in the disciplinary system. A finding of responsibility under a “clear and persuasive” evidence standard by two of three members of an investigative panel, composed of administrators and outside investigators, is certainly sufficient to punish a student for sexual misconduct.

Although we agree with the majority that the role of advisers should be expanded in proceedings to provide more advice to students, there should not be a requirement that certain questions be asked or that witnesses be called by the investigative panel. The panel’s role is to gather facts and statements and, based on those findings, make a determination on the accusation. The panel should be free to focus its resources where these findings lead, based on their expertise in these issues. Furthermore, the existing process already allows parties to request that certain witnesses be interviewed and respond in writing to the case file compiled at the end of the investigation before the final decision. Under the guise of due process, the majority attempts to dictate the specifics of a process they know little about and project their vision of a court-like proceeding onto a University investigative panel.

For these reasons, we respectfully dissent.

Signed,

Connor Pfeiffer ’18, Carolyn Liziewski ’18, Ashley Reed ’18, Cydney Kim ’17, Gabriel Swagel ’20, Dee-Dee Huang ’20, and William Pugh ’20

Daniel Elkind ’17 abstained from the writing of this editorial.

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