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The following selection is excerpted from ������ýapp�ٷ�’s Guide to Due Process and Campus Justice.

Burden of proof

The presumption of innocence — “innocent until proven guilty” — is central to our system of justice and our sense of fundamental fairness. When a public college seeks to discipline you, you should never have to prove your innocence. Rather, the college bears the burden of proving you guilty. Some evidence of your guilt, at least, has to be presented. You then must be given some opportunity to rebut the evidence.

Standard of proof

The standard of proof that due process requires in university disciplinary proceedings — that is, the degree of certainty with which a fact must be established for the fact to be determined true — is a hotly debated topic. (Because of recent state and federal government mandates regarding the standard of proof in sexual harassment and sexual assault cases, this debate is particularly intense in that arena.) Because the presumption of innocence is one of the few due process protections afforded to college students, the standard of proof required to prove guilt is extremely important.

Colleges and universities do not have to employ the same standard of proof as the criminal justice system, where conviction has to rest on guilt that is certain “beyond a reasonable doubt.” Nevertheless, some universities employ a greater standard of proof than the law requires — for example, the standard of “clear and convincing” evidence, which requires a reasonable certainty of guilt for conviction. At the very least, public colleges and universities must employ a “preponderance of evidence” standard, our judiciary’s lowest standard, which requires that guilt be more likely than not for conviction. This is a minimal standard of proof necessary for conviction. After all, if the “preponderance” guideline is not met, this means that most of the evidence supports a finding of innocence rather than guilt. It would be a bizarre system that allowed convictions where innocence was more probable.

FIRE's Guide to Due Process and Campus Justice

This FIREGuide informs readers about the appropriate (and inappropriate) methods by which university administrators address issues of academic and non-academic misconduct.

Read More

In theory, private university disciplinary panels must apply at least the “substantial evidence” standard of proof to disciplinary decisions. This protection flows from the legal doctrine that private university disciplinary decisions may not be “arbitrary and capricious.”

Courts have ruled that verdicts must be based on “substantial evidence” in order to avoid being arbitrary or capricious. If this doctrine were adhered to, the right to a decision based on “substantial evidence” would be one of the few procedural protections available to private university students. In practice, however, courts are reluctant to interfere with the disciplinary decisions of private universities, and they will do so only when such decisions are based on virtually no evidence.

Definitions for standards of proof

The following different standards of proof are used by various college and university tribunals. They are defined here in the order of how difficult they are to meet, from the most to the least difficult (direct quotations are from Black’s Law Dictionary):

• Beyond a reasonable doubt: “fully satisfied, entirely convinced, satisfied to a moral certainty”
• Clear and convincing evidence: “reasonable certainty of the truth … the truth of the facts asserted is highly probable”
• Preponderance of evidence: “more probable than not”
• Substantial evidence: “such evidence that a reasonable mind might accept as adequate to support a conclusion”
• Some evidence: any evidence at all supporting the charge

There are broad limits to the university’s right to convict an individual on little or virtually no evidence, or on the basis of evidence that is overwhelmingly and very reliably contradicted. For example, if someone testified that you committed a crime on campus at a time when you have incontrovertible evidence that you were a thousand miles away, virtually any court would go out of its way to overturn your campus conviction. The victim’s testimony that you were the culprit in that situation, although constituting “some” evidence, would not likely satisfy a court’s notion of adequacy.

To learn more about your rights, explore ������ýapp�ٷ�’s Guide to Due Process and Campus Justice.