WSJ Op-Ed: Presumed Guilty at Princeton

September 19, 2014

Princeton University looks set to become the latest campus to curtail the due-process rights of students accused of sexual misconduct, including rape and other violent assaults.


On Monday the faculty voted to approve new disciplinary policies under which allegations of sexual offenses—but only sexual offenses—would no longer require "clear and persuasive evidence" to be considered proven. "Preponderance of the evidence," the standard used in civil lawsuits, would suffice. The new policy now goes to the Council of the Princeton University Community, which is expected to approve it Sept. 29.


The new policies would also deprive accused students of anything approximating a trial or a jury of their peers. Under existing procedure, all offenses are adjudicated by the Faculty-Student Committee on Discipline. A faculty advisory report asserts the committee "has operated with fairness and discretion" but nonetheless proposes stripping it of jurisdiction over sex offenses.


Such allegations would instead be handled by a three-person team acting as both investigators and jury. That trio would conduct separate interviews with the accuser, defendant and any other witnesses. Defendants would have no right to confront the accuser or other adverse witnesses. In a nod toward due process, the proposal stipulates that an accused student (as well as the accuser) would have the right to a lawyer, which is not the case under current policy. But the lawyer would be permitted to speak only to his client, not on his client's behalf.


The investigators would decide guilt or innocence, and a pair of deans would impose a sentence. The investigators would "have training in investigating and evaluating conduct prohibited under the policy," although precisely what kind of training is unspecified. We asked a university spokesman, who replied by email: "At this time it would not be appropriate to discuss what will or will not happen until the process is complete."


How the investigators will be trained is a crucial question. In 2011 the Foundation for Individual Rights in Education reported on training materials used at Stanford University that purported to enumerate characteristics of abusers and victims. The former, according to the Stanford materials, "act persuasive and logical," while the latter "feel confused." Combined with the preponderance-of-evidence standard, such vague and prejudicial guidelines are enough to create a nearly unrebuttable presumption of guilt.


Universities are ill-equipped to investigate and adjudicate allegations of violent crime; that is why we have police, prosecutors, judges and juries. The pressure on universities to conduct such investigations, and to jettison due process, emanates from Washington, where the Education Department's Office of Civil Rights has imposed onerous demands on educational institutions in the name of combating sex discrimination.


Schools that refuse to adopt the preponderance-of-evidence standard, among other requirements, are threatened with the denial of federal funds, including student financial aid. Princeton has been under OCR investigation since 2010 for alleged lenience toward sex-offense defendants.

Members of the Princeton Council may feel they have no choice but to rubber-stamp this proposal. On the other hand, the university has an $18 billion endowment, one of the biggest in the country. Perhaps it could afford to risk some federal funding in the interest of preserving the rights of Princeton students.


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