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When Barack Obama was president, his administration pushed for universities to use the “preponderance of evidence” standard in student disciplinary proceedings, including for life-altering claims of sexual assault.

The standard — meaning it’s more likely than not that an incident occurred — falls short of the standard in court of “beyond a reasonable doubt.”

Now a judge in New Mexico is warning colleges and universities that the “preponderance” standard may be unconstitutional.

The Foundation for Individual Rights in Education documented  the decision by Judge James Browning.

He ruled that while university administrators sued by a student have qualified immunity, there are other problems with the case.

For example, he said the allegations of the student, identified only as  J. Lee, “plausibly support a finding that his sexual misconduct investigation resolved into a problem of credibility such that a formal or evidentiary hearing, to include the cross-examination of witnesses and presentation of evidence in his defense, is essential to basic fairness.”

The judge said “preponderance of the evidence is not the proper standard for disciplinary investigations such as the one that led to Lee’s expulsion, given the significant consequences of having a permanent notation such as the one UNM placed on Lee’s transcript.”

He said the fac that UNM “provides an evidentiary hearing in cases of alleged non-sexual misconduct but not in cases of alleged sexual misconduct supports Lee’s claim that the process he received was constitutionally inadequate.”

FIRE described the comments as “some of the strongest and most remarkable statements to date in favor of a student’s right to due process in a campus proceeding.”

The background was that the student, “alleged that the process used by the University of New Mexico to find him responsible for sexual misconduct violated his constitutional right to due process. When the university moved to dismiss his claim, Judge Browning found that Lee had indeed stated a plausible due process claim.”

On the evidentiary standard, FIRE’s commentary said “this opinion is remarkable.”

“It is, to my knowledge, the first federal court decision explicitly stating that ‘preponderance of the evidence’ is an inadequate standard in campus disciplinary cases with such severe potential consequences. Of particular importance is the fact that the judge considered the lasting impact of ‘a permanent notation’ on the plaintiff’s transcript in reaching this finding. FIRE has long argued that ‘[i]f a de facto sex offender registry for college students is to be constructed, it is all the more critical that procedural protections be in place to ensure trustworthy results,’ and it is heartening to see a judge reach the same conclusion. I hope other courts (there are currently hundreds of lawsuits by accused students pending in federal and state courts around the country) will follow suit.”

FIRE also pointed out that it’s standard practice now for universities to offer students accused of sexual assault fewer protections than students accused of other offenses.

The institutions include Brown, Cal Tech, Dartmouth, Georgetown, Notre Dame, Princeton, Penn, Tufts, UC Berkeley, UCLA, the University of Virginia and Washington University in St. Louis.

Lee’s case was dismissed based on “qualified immunity,” which means officials were not personally liable for the bad practices and bad policies they adopted.

WND reported that in a similar move only weeks ago, the University of New York at Buffalo was reprimanded by the Supreme Court of New York for its handling of an accusation of “harassment” and possession of a weapon against student Tyrone Hill.

The state’s high court said the record was “devoid” of evidence supporting university officials’ claims, according to FIRE.

Further, the university had wanted to hold another review on the issue in its own disciplinary system, but the court refused outright.

“We decline respondent’s invitation to remit this matter for a new hearing in light of its failure to transcribe the disciplinary hearing,” the ruling said. “Annulment and expungement is the prescribed remedy for an administrative determination that is unsupported.”

The court took the university to task for its failure to uphold due-process rights.

“We are compelled to express our dismay at respondent’s cavalier attitude toward petitioner’s due-process rights in this case, and we remind respondent – and all other colleges and universities, particularly state-affiliated institutions – of their unwavering obligation to conduct student disciplinary proceedings in a manner that comports with fundamental notions of due process for the accused, that renders determinations consistent with the facts, and that respects the presumption of innocence to which all students are entitled.”

FIRE said that according to Hill, he was receiving a ride home from his football teammate, Zachary Lefebvre, when a group of freshman football players taunted Lefebvre, prompting Lefebvre to get out of his truck to approach them.

“During this time, a UB student called the police about a man with Lefebvre’s features holding a gun in a truck. The police report describes the driver exiting the truck and pointing a gun at the group, causing them to run off,” FIRE said.

“The police identified Lefebvre as the suspect, who allegedly denied the charges by claiming Hill had brandished the gun. The police then searched Lefebvre’s pickup truck, found an Airsoft gun, and charged him for possessing a gun on school grounds. They questioned Hill about his involvement, who told them he did not see a gun during the altercation. The police declined to charge Hill,” FIRE said.

However, the evidence didn’t dissuade university administrators from demanding that Hill meet about the incident. And shortly later he was punished.

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