In contrast, the school's previous "clear and convincing" evidence standard required considerably greater evidence. Some courts define "clear and convincing" evidence as evidence which "produce[s] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." United States v. Askari, 222 Fed. Appx. 115, 119 (3rd Cir. 2007).
The change to lower the standard of proof was prompted by the Department of Education's April 2011 "Dear Colleague" letter mandate for sexual assault charges. The school felt compelled to apply this standard to sex offenses and decided to apply it to all charges, even offenses of a non-sexual nature.
We have written extensively about lowering the standard, as has FIRE. Read FIRE's explanation of the dangers in lowering the standard of proof. This is a very important issue that needs to be debated seriously.
Unfortunately, at the University of Oregon, there is indication that some of the participants in the debate did not even understand what the "standard of proof" means. According to AroundtheO:
A student and several senators argued that with a life-altering penalty such as expulsion the university should require a higher standard of “clear and convincing evidence“ to prove wrongdoing. But others said the university should expect more from students than the bare minimum of acceptable behavior.
“This allows for a community to set higher standards, and many universities do this,” said Sen. Jane Cramer, a political science professor. “We can do this here and we should do this now.”(Emphasis added.)
Lowering the standard of proof to "preponderance of the evidence" has nothing to do with setting higher standards of "acceptable behavior" for students. The actual conduct that warranted expulsion when the standard called for "clear and convincing" evidence still warrants the same punishment now that the standard has been lowered. The definition of sexual assault has not changed: the same conduct that was forbidden previously is still forbidden now. Lowering the standard of proof simply means that the school needs significantly less evidence to prove that the student is guilty of an offense that will allow the school to expel him. The evidence need not be nearly as clear or as certain as it used to. In short, this change has nothing to do with "expect[ing] more from students," it means expecting less from the school -- less proof to make a decision that could forever alter a student's life.
The following needs to be clearly understood: the sole and exclusive goal sought to be achieved by lowering the standard of proof is to make it easier for the school to find students guilty of offenses they've been charged with. The benefit of lowering the standard of proof is that more students who actually committed offenses will be found guilty and will be expelled. Every sane and rational person should applaud such a result. But there is a negative side to lowering the standard of proof that ought to give everyone pause: it makes it easier for the school to find innocent students guilty of offenses they did not commit. Unfortunately, this latter concern is typically ignored in the public discourse about campus rape. That is one of this blog's primary concerns.
While there are legitimate arguments to be considered on both sides of the debate about lowering the standard of proof, before the issue may be seriously debated, everyone needs to understand what lowering the standard of proof actually means, and what it will, and will not, do.
The University of Oregon has just made a monumentally important decision that could affect the lives of many students, and there is indication that some involved in the debate that led to that decision didn't understand what they were debating -- and yet their position prevailed.