The number of disciplinary conduct sanctions levied against students at Dartmouth has increased every year for four of the last five years. There were 398 conduct sanctions for the 2001-2002 school year. In the 2004-2005 school year, there were 537. That means that greater than one out of every eight Dartmouth students was punished by Dartmouth's disciplinary system in that year alone. The sanctions imposed by this system range from a warning or reprimand to suspension or even separation from the college.
The dramatic rise in disciplinary punishment has fueled student unease regarding Dartmouth's disciplinary hearings that are adjudicated by the Committee on Standards. Last spring, Student Assembly commissioned a taskforce, of which I am a member, to investigate the procedures and policies of the COS and to offer recommendations to make sure that Dartmouth's disciplinary system upholds principles of fundamental fairness.
The taskforce has compiled a list of eight recommendations that we believe will ensure that Dartmouth remains a leader in higher education by providing its students with a disciplinary regime that ensures procedural fairness both to victims of disciplinary infractions and to students accused of violations. Last week, Student Assembly overwhelmingly approved the taskforce's report by a vote of 30-3 and has subsequently placed the report on its website for anyone to view. I would like to highlight two of our recommendations below.
(1) Change Dartmouth's standard of proof from "a preponderance of the evidence" to "clear and convincing" evidence.
COS hearings are currently decided "by a preponderance of the evidence," which means that the accused may be found responsible if it is determined that it is "more likely than not" that he or she committed the infraction. The preponderance standard of proof is commonly used in civil court proceedings because, as the U.S. Supreme Court stated in Addington v. Texas, "society has a minimal concern for the outcome of such cases."
Unlike civil lawsuits, which usually involve purely monetary disputes, hearings before the COS can have a life-altering effect -- indeed, even a life-ruining effect -- on the accused student. Dartmouth should not permit a student to be suspended or separated from college when it is only "more likely than not" that the student committed a violation. The risk is too great under this "51 percent" standard that an innocent student will be punished.
Following the lead of some of our peer universities, the taskforce has recommended that Dartmouth change the burden of proof in disciplinary proceedings to an intermediate standard called "clear and convincing" evidence. This standard, already used at a number of other universities and endorsed in higher education literature, requires that the trier of fact develop a firm belief or conviction as to the truth of the allegations alleged. This standard provides the most suitable amount of procedural fairness to those accused while at the same time it does not overburden the disciplinary system.
(2) Provide a fair framework in which those accused of violating a college rule are allowed to question witnesses directly.
We have also recommended that those accused be allowed to ask direct questions to witnesses. Under the current system, the accused may not address witnesses at all. He or she may request that the chair of the proceeding ask the witnesses certain questions, but the chair may decline to do so.
The ability to question witnesses is a fundamental procedural protection in the American legal system. It arises out of the Sixth Amendment's right to confront one's accuser. The Supreme Court has referred to cross-examination as the "greatest legal engine ever invented for the discovery of truth." Allowing the questioning of witnesses in COS hearings means that the accused does not have to sit silently if a witness has given false or misleading testimony. This recommendation will further the purpose of COS hearings, which is to determine the truth, and help to ensure that those responsible are disciplined, and those that are innocent are not.
While the Student Assembly overwhelmingly endorsed the taskforce report by a vote of 30-3, those who voted against it felt that the two recommendations discussed above would be undesirable for cases of alleged sexual abuse. They feel that because sexual abuse is such a serious crime, the "clear and convincing" burden of proof is too high because it would lead to the acquittal of some people who are culpable, which would be a serious detriment to the Dartmouth community. This objection, while well-intentioned, is misguided.
Sexual abuse is indeed an extraordinarily serious offense, and those who commit sexual abuse deservedly face severe punishment. Rather than having a low burden of proof for serious charges, however, the opposite should be the case: the more serious the crime, the greater the evidence that should be necessary to find the accused responsible. That is why in the U.S. court system, there is a higher burden of proof for cases in which society has a greater stake in avoiding erroneous determinations. In civil litigations, where only a monetary dispute is at stake, the preponderance standard is appropriate because society does not generally have a powerful interest in which side gets the money. In disciplinary proceedings, by contrast, the Dartmouth community has a significant interest in making sure that it only suspends or separates from the college individuals who are truly responsible. The "clear and convincing" standard strikes an appropriate middle ground by reducing the chance that an innocent student will face severe punishment, while providing the flexibility needed to find culpable students responsible. The standard also adds needed legitimacy to the outcomes of COS hearings.
Some have also argued that we should not allow direct questioning of witnesses because it would discourage victims of sexual abuse from coming forward and it might intimidate them when they are trying to testify about a traumatic experience. This is a serious concern. I, along with others on the taskforce believe, however, that we can devise a system by which the accused is able to confront his or her accuser and at the same time is only permitted to ask appropriate questions that are devoid of intimidation or harassment.
Stanford, for example, allows direct questioning of witnesses provided that they are "conducted in a manner that is courteous to all participants, that is devoid of intimidation and harassment, and that limits discussion to information relevant to the facts and issues of the case." This framework has been established since 1998, and Stanford's disciplinary system continues to receive high accolades in literature on higher education.
The taskforce's recommendations, if implemented, would provide the greatest amount of procedural fairness to Dartmouth's disciplinary system and would help to ameliorate Dartmouth students' overwhelmingly negative opinion of the process. By providing its students with the fairest possible disciplinary system, Dartmouth would take a crucial step toward cementing its place as a leader in higher education.
