BY STUDENT AFFAIRS EDITOR
AND , COMMUNITY ENGAGEMENT EDITOR
Issues surrounding sexual misconduct and discrimination were the focus of the University Faculty Senate’s open hearing on Monday, which discussed the new non-discrimination policy. The Committee on Faculty Welfare and Privileges proposed changes.
The new non-discrimination policy was initially enacted on Aug. 1, but was quickly rescinded, having been enacted without Faculty Senate approval.
The Student Government Association (SGA), Graduate Student Government (GSG), undergraduate students and some faculty disagree with the policy proposal to change from “preponderance of information” to “clear and convincing evidence.” The Committee on Faculty Welfare and Privileges supports the change alongside the American Association of University Professors (AAUP), who, in a document released to The Review, argued their position.
“In situations where a suspension or expulsion of a student or the suspension or termination of a faculty or staff member is proposed, we are profoundly uncomfortable with the possibility that such negative life-altering decisions could be made on the relatively weak standard of barely more than 50 percent probability, the preponderance of evidence or information standard. In such situations of potentially severe punishment, we believe that it is more appropriate to employ the ‘clear and convincing evidence’ standard, which national AAUP has argued for in a number of policies and statements, including its recommendations for academic due process in its 2015 Documents and Reports.”
Andrea Boyle Tippett, the director of External Affairs at the university, addressed the policy discussion on behalf of the university in an email statement.
“The University of Delaware is deeply committed to maintaining a safe campus for everyone, including keeping our community free from all forms of sexual misconduct and discrimination,” Boyle stated in an email. “Both are serious issues that have the potential to disrupt a student’s academic, emotional, physical and social wellbeing.”
The discourse at the hearing, which was held in Gore Hall, centered around proposed changes regarding evidence in discrimination cases that get brought to the attention of the university.
The Aug. 1 policy changes set a standard of preponderance of information. According to the proposed policy, preponderance of information “requires the investigator to conclude that it is more likely than not that the Respondent violated this policy in order for there to be a finding of responsible.”
The proposed change that was discussed suggested that the standard of proof should be “clear and convincing evidence.” The revised proposal says that “[u]nder this standard, individuals are presumed not to have violated this Policy unless the Investigator concludes that there is clear evidence that would convince a reasonable person that the Respondent violated the University’s Non-Discrimination Policy.”
With the clear and convincing evidence standard, students would be required to provide more tangible evidence than with preponderance of information.
The terms “preponderance of information” and “clear and convincing evidence” have their basis in the federal judiciary of the United States, although the term used in most courts is “preponderance of evidence.” According to the Legal Information Institute at Cornell Law School, clear and convincing evidence “is a more rigorous standard to meet than the preponderance of the evidence standard.”
The idea that there is a need for change is not new. According to the SGA, Sue Groff, the university’s Title IX Coordinator and director of the Office of Equity and Inclusion and then-Dean of Students Jose-Luis Riera, who is currently serving as the interim vice president for student life at the university, created a committee roughly over a year ago to review the previous non-discrimination policies, “with the intention of mirroring the existing sexual misconduct policies.” This committee produced the draft that was debated at the hearing.
Kelly James, a junior women and gender studies and public policy double major, has seen the need for change and discussion throughout her time at the university, and believes that implementing the clear and convincing evidence standard of proof would add to pre-existing problems that she already sees at the university.
“Over my past three years at UD I have definitely noticed a race problem on campus,” she said. “…with that considered knowing we have a race problem, I don’t see why having a higher standard of proof for some members of the UD community than others. I don’t understand why that would be a logical policy to implement.”
David Maisson, the president of the GSG spoke on behalf of his peers at the hearing, stating that GSG is in favor of the preponderance of information standard over the clear and convincing evidence standard.
“The feeling is that the stipulation about clear evidence is troublesome only because when it comes to acts of discrimination and harassment there isn’t always clear evidence,” he said. “We are concerned about the stipulations regarding clear evidence in that it may generate a tone of a disregard for the subject or the experience of the individuals who are in this situation in favor of clear physical evidence.”
The SGA also favors the preponderance of information standard. Rushing the process and leaving out undergraduate students would be a disservice to the university community, according to Kevin Peterson, executive vice president of the SGA. He believes that multicultural organizations and students need to be made aware of the proposed changes before the faculty senate votes.
“The Student Government Association stands firmly against the idea to require clear and convincing evidence for cases of discrimination,” Peterson said. “The SGA does stand with the notion that these policies need to be addressed further. I wouldn’t soly put the blame on the faculty senate or the Administration. I would also say the SGA could be doing a lot more to reach out and we are actively trying to change our organization structure so we can deliver this kind of information on campus..”
Those who were for the preponderance of information standard generally argued that it would encourage marginalized students to come forward, while those who were in favor of the clear and convincing evidence standard were concerned that with preponderance of information, innocent students and faculty are at risk for facing unnecessary discipline.
SGA Student Body President Natalie Cricenzo spoke about the association’s involvement with the policy, stating that she felt administration could have done a better job including student representatives in the process of its creation.
Students that attended agreed that the Faculty Senate should have notified multicultural organizations of the proposed changes. Those students believe that the percentage of diversity shown at the Faculty Senate meeting needs to be increased in order to be inclusive to the university community as a whole.
“I feel like there was a very good conversation, but not good representation,” Jessica Castro-Salinas, a sophomore at the university who serves as a peer mentor for the LGBTQ+ and Racial Justice Activism Living Learning Community, said. “I could probably count the people of color on just one hand. If those cultural organizations are not consulted, then the people who belong to them don’t come.”
The need to bring students into this conversation became clear as the forum went on. The Faculty Senate and the SGA announced that they would work to better notify students of the proposed changes and have an open comment period before a potential vote in the coming months.
“If you don’t want to be punished for discrimination then don’t discriminate,” Harry Lewis, a senior at the university, said.