After initially responding to our request for an interview with a statement entitled “Regarding Title IX,” the Claremont McKenna Office of Public Affairs granted the CI an interview with Dean of Students Mary Spellman to discuss the college’s Title IX sexual violence grievance procedures.
Claremont McKenna College implemented new Civil Rights Policies and Civil Rights Grievance Procedures, which apply to cases of sexual violence, in accordance with a Dear Colleague Letter (DCL) issued by the Department of Education’s Office of Civil Rights. The DCL, sent to all educational institutions in the United States that receive federal funding, stipulates numerous Title IX requirements to which recipients must adhere in investigating and resolving complaints of sexual violence. The most controversial of its contents is a requirement that schools use a preponderance of the evidence standard of proof in evaluating complaints of sexual violence. The preponderance standard is met if it is more likely than not (a greater than 50 percent probability) that the offense occurred. The DCL explicitly states that schools are not to use the clear and convincing standard (i.e. it is highly likely or reasonably certain that the offense occurred).
When asked if Claremont McKenna College held any opinions about complying with the Department of Education’s ultimatum regarding the preponderance standard, Dean Spellman responded that the decision-making standard is a minimally important aspect of the college’s grievance procedures. She said, “The decision-making standard is the least important piece, I believe, in how we handle sexual violence cases or any kind of student conduct case. It’s really about, ‘Do we provide a fair and neutral and equitable process to all parties?’ The decision-making standard is a small piece of that larger process.”
When asked more specifically if the college was concerned that the use of such a low standard would produce wrongful findings of guilt, Spellman responded similarly, saying that the low decision-making standard should not be of great concern. She said,
“The [decision-making] standard is one piece of a very important process, so we need to make sure we have a process that’s fair, that it has appropriate due process for all the parties, that the individuals, particularly the respondent, understands what their rights are and has a process by which the college has as much information as possible about the circumstance so that the trained investigator or trained hearing officer is able to make a fair, neutral and informed decision. So I think that that is the most important piece. We could have a higher decision-making standard, and if our process didn’t have all of the robustness that our process does, you could still have a problem. It could be a different problem, but you’re going to still have a problem. So the decision-making standard—you know, preponderance or something else—really, what’s crucial is the process that you get to that. With preponderance of the evidence, if you have a process that is as robust as we want ours to be and we hope and think ours is, then the decision is easy at that point, because you have all the facts. The decision is either you do have enough information, or you don’t. That’s, to me, the most important piece.”
In other words, if the college institutes robust grievance procedures that offer appropriate due process for all parties involved, it doesn’t really matter whether the college uses a preponderance standard, a clear and convincing standard, or even a beyond a reasonable doubt standard. You either have enough information, or you don’t.
For a perspective about why the decision-making standard does matter, and why the preponderance standard is a troubling aspect of CMC’s grievance procedures, see our previous article “Title IX, sexual violence, and the preponderance standard.”