There's a lively debate in the comments between Jamie Dreier and others regarding the standard of proof question at the FP blog. I linked in my original piece to the arguments of my colleague Geoffrey Stone, but let me quote his analysis here, since I think it states the case clearly and thus identifies the issues those on the other side of the question need to dispute:
To justify its insistence on the preponderance of the evidence standard, the Department of Education draws an analogy to civil actions in court. In the typical civil law suit for damages, whether the issue is a car accident, a breach of contract, or an assault, the standard is preponderance of the evidence. But this is a bad analogy.
For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.
Moreover, the procedures used in these disciplinary hearings do not come close to those employed in civil actions, which involve judges, juries, rules of evidence, lawyers, discovery, and a host of other procedural protections designed to enhance the reliability of the proceedings. Even at their best, college and university disciplinary proceedings are a far cry from civil actions in terms of fairness to the accused.
Thus, although the Department of Education may well be right that “proof beyond a reasonable doubt” is unnecessary in these circumstances because there is no risk of imprisonment or a formal criminal record, it is completely unfair, in my judgment, for a college or university to suspend or expel a student on the ground that he committed a sexual assault if the institution is only 51 percent confident that he did so.
The Department of Education should either mandate the “clear and convincing evidence” standard in these situations, or it should at least leave the institutions free to choose which of those standards best fits their own sense of due process and justice.
One might, of course, object that it is just as bad to “acquit” a guilty student as to “convict” an innocent one. Indeed, we cannot underestimate the emotional and psychological harm to the complainant if her charges are not acted upon. But this is true even in criminal prosecutions. Our core sense of fairness and justice always errs on the side of not erroneously punishing an innocent person. We do not sacrifice that principle even when the accusation is terrorism, murder, rape, or child molestation. We should not sacrifice that principle here.
The combination of a low standard of proof and flimsy adjudicative procedures (in which one individual is often judge and jury, in which neither side can confront the other side's witnesses, in which neither side can compel the other side to disclose pertinent evidence and so on--all anomalies when compared to civil trials, let alone criminal ones) is a recipe for disaster, and disaster is what the Title IX process has become at universities across the country, for actual victims and for wrongly accused perpetrators.
As far as I can see, the strongest argument for lowering the standard of proof, notwithstanding the infirmities of the process as a whole, is that one should reject the idea that we should go to great lengths to avoid punishing the innocent. Perhaps unsurprisingly, few proponents of the OCR's overreach are willing to say openly that that is their view. (Larry Laudan has made some provocative arguments in recent work against the presumption that convicting the innocent is the greatest evil, as well as other rules governing proof that favor the accused in the criminal context, but from a quite radically consequentialist perspective.) In any case, Stone identifies the key problems with a lower standard of proof, and it seems to me, at least, that the crucial question is how willing are we to tolerate wrongful punishment of the innocent in Title IX proceedings versus how willing we are to tolerate wrongful exoneration of actual perpetrators.
