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11/12/91

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Faculty Senate meeting of Nov. 7

A Stanford law professor who was suspended for four quarters during her student days on The Farm 20 years ago has come out in strong support of proposed judicial charter changes that would make it easier to find students guilty of misconduct.

Prof. Janet Alexander told amused members of the faculty senate on Nov. 7 that she probably was the only person in the room who could speak from direct experience with the university's student disciplinary system.

The lengthy, lively discussion of proposed amendments to the Stanford Legislative and Judicial Charter ended with no action when the senate lost its quorum. Senate Chair James Sheehan said the proposition would come up for vote at the Nov. 21 meeting.

Several senators questioned how the changes would help the judicial process, but it appeared the measure probably would have passed had the vote been taken.

Alexander, known as Janet Cooper Weiss when she was a graduate student in English between 1968 and 1971, said she supported the charter's most controversial amendment, which would lower the standard of proof needed for a misconduct conviction from "beyond a reasonable doubt" to "clear and convincing evidence."

Other amendments would guarantee certain rights to students who initiate complaints, and require accused students and student witnesses to cooperate during disciplinary hearings.

Alexander compared university judicial proceedings to civil proceedings, her area of legal expertise.

"No one as a result of a Stanford disciplinary proceeding is going to lose liberty, no one is going to lose the right to vote, nobody is going to have a criminal record," she said.

The "beyond a reasonable doubt" standard applies only in criminal, never civil proceedings, she said. For example, if a sexual assault case were brought to court as a civil lawsuit rather than a criminal case, the standard of proof would be only a "preponderance of the evidence," she said.

"Clear and convincing" evidence is a higher standard than preponderance, Alexander said.

"It is a very exacting standard, it is very hard to reach," she said. "It is not a light standard, and it is not true that changing the standard would denigrate the process or provide substandard rights for defendants in Stanford cases."

She said the standard of proof is a way the court system balances different interests. More than just the interest of the defendant is at stake.

"There are interests of other individuals, and there are interests in the honor code in particular, and the university as a whole" that also must be considered, she said.

While her run-in with the judicial system as an antiwar demonstrator ended her academic career in English literature, she had managed a comeback, she said to laughter.

The proposed amendments were presented by law Prof. Deborah Rhode, head of the Committee of 15, a group of faculty, students and staff that drafted the revisions during the summer after extensive public and private consultation.

The suggested changes are based in part on recommendations from the 1990 report of the university's Sexual Assault Task Force, but would apply to all student conduct cases.

Rhode said that few victims of sexual assault report the incidents because they are discouraged by the heavy burden of proof required in the current system.

In addition, many faculty and students do not report suspected cheating because "they have no confidence in the process." Faculty sometimes ignore the judicial system and simply give failing grades to students suspected of cheating, she said.

Rhode said that percentages of certainty could be assigned to three levels proof that are used in various legal proceedings: "beyond a reasonable doubt" - 90 to 100 percent; "clear and convincing evidence" - 70 to 90 percent; and "preponderance of evidence" - above 50 percent.

The intermediate standard - "clear and convincing evidence" - is comparable to the "highly persuasive evidence" standard used in Stanford faculty misconduct cases. Outside Stanford, it applies in cases involving deportation, involuntary commitment to a mental health institution, disbarment and termination of parental rights, she said.

Rhode said she considered it "peculiar to think students should have a stronger burden of proof" than applies to faculty.

The higher standard of "beyond a reasonable doubt" was developed for criminal cases, which are unlike student misconduct cases.

"Criminal sanctions are unique in their impact on life, liberty and reputation," and criminal proceedings are unique in their ability to use the investigatory resources of the state to subpoena witnesses and gather evidence, Rhode said. The university lacks that power and therefore is hampered in trying to meet the standard, she said.

Rhode said that changing the standard of proof would not endanger innocent students, but would marginally improve chances of convicting the guilty.

"I'm deeply concerned about protecting anybody who is wrongfully accused, and if I thought our recommendations would put any innocent student at risk, I would not have voted for the report, nor would I have stayed on to chair the process," she said.

Rhode noted that the Committee of 15, including five student members, unanimously endorsed the recommendation.

She also said that about 25 honor code and fundamental standard cases a year that could meet the "clear and convincing evidence" standard are not prosecuted because they do not meet the "beyond a reasonable doubt" standard.

Judicial Affairs Officer Sally Cole told the senate that she dropped charges after initially filing them in another three to six cases last year because they failed to meet the higher standard.

Responding to a question from Prof. James Patell, business, Cole said that when confronted with charges, most students admit their guilt and are given a penalty after an informal discussion with a staff member of the dean of students office.

However, the current system essentially allows some students to follow up their "initial misconduct by lying about it and escaping the need to accept responsibility for it," she said. The students who end up being penalized for their actions are those who respond to the initial questions by admitting responsibility, Cole said.

"The current system of enforcement apparently doesn't work in cases of sexual assault either," said Prof. Mary Pratt, Spanish and Portuguese. The senate ought to consider the needs of nearly 50 percent of Stanford students, she said.

"Significant numbers of women are living in a culture where their rights of physical safety, their dignity and their well- being are not secure," Pratt said.

Women's lives are often traumatized or derailed by sexual assault and traumatized again because they feel the system "protects the coercers more fully than the coerced."

Prof. James Greeno, education, said he was uncomfortable with the abstract discussion, although the amendments probably should be adopted. He asked how, in concrete terms, the change would help the process.

Rhode said it was likely that fewer students would protest accusations if they knew that witnesses would be compelled to testify during the investigation. The university community, she said, would have more confidence that the system was responsive.

Kevin Warsh, chair of the student senate, told the faculty that students were divided on the amendments. A key concern is that the lower standard of proof will result in innocent students being "thrown out of school," he said in an impassioned speech.

Students are hesitant to give the administration more power - in the form of a lower standard of proof - than is now held by judicial systems operated by the government, he said.

Cole "is not fighting an entirely uphill battle," Warsh said. Indeed, her conviction rate is remarkably high, he said.

In a four-hour debate on the subject Nov. 5, student senators defeated a proposal that would have derailed Committee of 15 suggestions, but they stopped short of endorsing the judicial amendments. Warsh said he expects the student senate to take up the matter again at its Nov. 19 meeting.

The amendments must be approved by both the Associated Students' senate and the Faculty Senate before it can be forwarded to President Donald Kennedy for final approval. According to the student group, lowering the standard of proof will require a change in their constitution.

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