EXPLAINED: How U of M's Title IX investigation works

(KMSP) - The University of Minnesota is not able to say much about the discipline process behind the suspensions of 10 of its football players because of privacy laws, but various rules and laws explain the process.

The Process

The investigation and discipline process is governed by the U of M's “Student Conduct Code.” The code calls for an investigation, and for an “informal resolution” to be presented to the accused students. The football players have received these proposed resolutions, which included suspensions or expulsions.

The players had the option to accept or reject the proposed resolution. The players rejected the resolutions, which triggers the next step: a “formal hearing” before a panel. And if the players don’t like the panel’s decision, the players can request an appeal.

The Standard

The entire process is governed by an evidentiary standard called “preponderance of evidence,” meaning the school had to decide whether it was “more likely than not” the players broke the university’s rules.

The “preponderance of evidence” standard is borrowed from the civil justice system. It is a lower standard than the one used in the criminal justice system, which requires prosecutors to prove a defendant broke the law “beyond a reasonable doubt.”

In 2011, the U.S. Department of Education sent a letter to colleges and universities suggesting they use the preponderance standard. While the University of Minnesota was already using the preponderance standard, some other schools were using a “clear and convincing" standard, which is a standard between “preponderance of evidence” and “beyond a reasonable doubt.”

The Hennepin County Attorney declined to file charges in the Gophers’ sexual assault decision after considering whether he could prove the players committed the alleged crimes beyond a reasonable doubt. The University of Minnesota, which did find the players in violation of various rules, only had to consider whether it was more likely than not the players broke the rules.

The Debate

Kathryn Nash, an attorney at Gray Plant Mooty, conducts investigations for some schools, but is not involved in the current case. She said the “preponderance” standard can be tough in close calls, but makes sense.

“I know it places a real challenge on schools in some of the tough and close cases because the sanctions are very severe,” Nash told Fox 9. “At the same time, it places the same standard that’s used in all civil cases, so cases that go to court but where liberty isn’t at stake, this is the standard of evidence that is used.”

However, Joe Tamburino, a criminal defense attorney who has represented students accused by schools, believes the standard makes it too easy to punish students for high-level offenses.

“[I] have always had huge concerns,” Tamburino told Fox 9. “They do this in civil cases. But that’s because they do it in our justice system. And a university and college is not a justice system.”

Tamburino believes the the 2011 letter sent to schools was well-intentioned, but schools have taken suggestions too far.

“All of a sudden, in 2011, the administration said we want colleges to crack down on sexual assaults, which is good. You don’t want sexual assaults to be simply thrown away. But what that has morphed into...the pendulum has swung so now if anyone at college is accused of any sexual impropriety, all these rules kick in, and you don’t have a hearing in court, you have a hearing in front of people who have absolutely no idea how to investigate a criminal case,” Tamburino said.

Tamburino believes high-level accusations should be resolved in the criminal justice system by trained criminal investigators, and the lower standard applied to lower-level offenses.

Nash points out that investigators receive “specific training,” with some schools using outside law firms to conduct the investigations.