Members of the Wesleyan Student Assembly (WSA), Student Judicial Board (SJB), and University administration have been discussing the possibility of raising the standard of proof used by the SJB in making rulings on student violations to the Code of Non-Academic Conduct (CNAC). The proposed change would formally require the SJB to apply a higher degree of certainty when judging that students are responsible for alleged violations, which some students hope will decrease the number of unfair rulings and increase consistency. Still, other students question whether the change would, in fact, further convolute the SBC’s decision-making process.
The proposal to raise the standard of proof has been put forward by WSA Student Affairs Committee (SAC) members Joe O’Donnell ’13, Dina Moussa ’12, and Teddy Newmyer ’11, although it has received opposition from members of the SJB and administration.
O’Donnell argued that raising the standard is needed not only to increase consistency in how the board makes rulings, but also to decrease cases in which students are falsely held responsible for violations.
“We shouldn’t be punishing students and putting things on their permanent records, potentially negatively affecting their reputations and job prospects in the future, based on hunches,” he said. “It’s extremely fickle and it’s extremely backward.”
Using the preponderance standard, O’Donnell said, evidence such as the smell (but not actual discovery) of marijuana, seeing someone holding a Solo cup at a party where alcohol was being served, or a Public Safety officer identifying a student from a distance at night could theoretically be sufficient to pass the 50 percent certainty bar.
“Knowing that the board holds itself to a higher standard, in my opinion and as conversations that I have had with many people would indicate, generally increases faith in the process,” he said.
CNAC currently states that “The board will make decisions about responsibility and sanction(s), if appropriate, during closed session, and their decisions regarding responsibility shall be based on the evidential standard of fair preponderance.” “Fair preponderance” means that the board must be more than 50 percent certain that allegations are true, based on the evidence presented.
The proposal to raise the standard of proof calls for replacing “fair preponderance” with “clear and convincing evidence,” which would demand that it be “substantially more likely than not” that an alleged violation occurred. This standard would fall somewhere in between preponderance and “beyond reasonable doubt” (meaning nearly 100 percent certain), which is the standard used in criminal cases in the U.S. judicial system.
According to O’Donnell, conversations with SJB members have led him to believe that, in about 90 percent of cases, the SJB uses a “clear and convincing evidence” standard in practice. However, since the “fair preponderance” standard is written into policy, there is a vague “coin-flip” area which allows for inconsistency in rulings.
SJB co-Chair Ian Park ’11, on the other hand, has countered that the change of the standard would decrease the clarity of the SBC’s decision-making process.
“First, this proposed change in standards would add another layer of ambiguity to the process,” he wrote in an e-mail to The Argus. “The idea of adjudicating on a middle ground between ‘fair preponderance’ and ‘beyond a reasonable doubt’ is not ideal for the board to operate under. This vagueness would also confuse the students’ expectations of what the process will be like, the very issue the SJPC [Student Judicial Process Committee] is planning to address in the coming semester.”
Assistant Director of Student Life and Student Conduct Scott Backer also expressed concern about the effects that raising the standard would have on the judicial process.
“I am concerned that raising the standard of evidence could result in SJB hearings becoming more adversarial and might make it more difficult for students to be held accountable,” Backer wrote in an e-mail to The Argus. “I understand that not all students feel comfortable in front of the SJB, but the student members of the Board work hard to insure that each student understands the process and outcome, including sharing their rationale for the recommendations they make.”
Park agreed that the change would make the judicial process more unpleasant for all parties involved.
“The board would have to question students more aggressively in order to see if we can reach a higher level of confidence,” he wrote. “This is not pleasant for the board or the student before us, and the last thing we want for this University is a judicial process that feels like it is constantly ‘out to get you.’”
O’Donnell has argued that peer institutions that currently use the “clear and convincing evidence” standard do not show significantly higher rates of acquittals or more dishonesty among students. Among NESCAC schools, Hamilton College is the only college whose judicial board uses a standard of “clear and convincing evidence.” However, other schools outside the conference such as Harvard University, Princeton University, the University of Pennsylvania, and Cornell University also use similar “clear and convincing evidence” standards.
“A few colleges use a different standard of proof but most college judicial systems use ‘fair preponderance of the evidence,’” Backer wrote. “Because each judicial system is unique to that college and has a different composition of its judicial board (all students vs. student, staff, and faculty), changing the standard of proof without considering how the system currently works could create new problems.”
Wesleyan’s SJB is composed of nine student voting members, each serving two-year terms. The Student Judicial Process Committee (SJPC) committee of the WSA serves an advisory role to the SBC and the Dean’s Office regarding judicial issues.
O’Donnell asserted that the idea of raising the standard of proof is one which the vast majority of the student body would support.
“If it’s just a few administrators and SJB members that are the opponents of this, when most people I’ve spoken to outside of the system–students, faculty, alumni, trustees, and others—are supporters, I think that will make it clear to President Roth that this is an instance where intervention is warranted and that the arguments in favor of the change are far more compelling than those against it,” O’Donnell said. “And for whatever faulty reasons that certain SJB members and administrators oppose the change, those need to be overlooked in favor of what is actually best for students, best for consistency, and best for our institutional integrity.”
Park maintains that the negative consequences of the proposed change will outweigh the potential benefits.
“In my experience, the current process is one that works well to uphold our community standards,” Park wrote. “More than anything, a deeper understanding of this process would be beneficial for the student body, and the SJPC will continue to work on this issue in the coming weeks.”