The University of Michigan is currently considering a number of changes to its rules governing student behavior and one of the changes under consideration would have lowered the standard required to find a student guilty of violating university rules from one of “clear and convincing evidence” to one of a “preponderance of evidence.”

The change to the school’s Statement of Student Rights and Responsibilities was advocated on the grounds that it might make victims of sexual assault more likely to come forward if it was easier to win one’s case against another student, but the standard would apply in all cases where a student is alleged to have violated the university’s code of conduct or any applicable rules and laws.

This change was initially endorsed by the Michigan Student Assembly, but last week the MSA took another vote and rescinded its support for the amendment after the Senate Advisory Committee on University Affairs expressed their concerns about the lowered burden of proof and the due process rights of those accused of wrongdoing.

The document governs the rights and responsibilities of students brought before the Office of Student Conflict Resolution. Cases of sexual assault, it seems to me, are crimes rather than rules violations and should be handled by the police and the prosecutor’s office — which will, of course, have to adhere to the constitutional standard in all criminal law cases and prove the case “beyond a reasonable doubt.”

Far more likely to be handled by the OSCR are cases of offense or violations of the school’s speech code. And as the Foundation for Individual Rights in Education (FIRE) points out, U of M’s speech code is among the most draconian in the nation. The lower standard would only make it more likely that a student would be found guilty of violating a speech code that is almost certainly unconstitutional.

Interestingly, U of M’s speech code was already struck down by a federal judge two decades ago. In Doe v University of Michigan in 1989, a federal court struck down the university’s then-existing speech code as unconstitutional. In fact, the courts have routinely struck down such codes. Public universities are, of course, bound by the First Amendment just as the rest of the government is.

Azhar Majeed, a U of M graduate who is now the Associate Director of Legal and Public Advocacy at FIRE, praises the MSA for pulling its endorsement of the lower standard:

I am heartened to see MSA reverse course on this issue. As I argued last week, the “preponderance” standard, by merely requiring a finding of a 51 percent chance that an accused student committed the offense alleged, places too low of a burden of proof on the university to demonstrate that the offense was committed. It also fails to adequately protect students’ rights and interests in disciplinary matters, which are more akin to criminal than civil matters. Campus hearings very often involve serious charges with serious consequences, both for students’ academic careers and standing with the university as well as their professional careers. As such, the “clear and convincing evidence” standard, which requires a university to prove that it was substantially more likely than not that a student committed an alleged offense, is more appropriate for campus hearings. By implementing the “preponderance” standard in its student judiciary matters, the University of Michigan would have shortchanged its students’ due process rights. Additionally, the preponderance standard would have invited selective application of university policy and unfair treatment of certain individuals and groups, as the lesser standard would allow administrators to more easily manipulate the hearing process to go after students for unsound reasons. I commend the members of both SACUA and MSA who recognized these problems.