The Oct. 5-6 Bangor Daily News editorial asserting a lack of due process in the recent one-year suspension of two University of Maine students accused of sexual assault by another student properly notes the seriousness of the charges against the students and the difficulties of proof in such cases. Unfortunately, the editorial contains several factual errors which, if left uncorrected, could unfairly affect public perceptions.

I have taught and written about constitutional law and due process for the last quarter century. As the former dean of the University of Maine Law School and an interim provost at UMaine and an interim president at the University of Maine at Fort Kent, I am familiar with due process within the University of Maine System. I write to clarify some essential matters.

The United States Constitution provides that government bodies, like the University of Maine System, shall not deprive persons of “life, liberty, or property, without due process of law.” The United States Supreme Court has regularly emphasized that due process does not have a single, fixed meaning in all situations. The broadest due process protection occurs in the serious criminal prosecution. The Constitution and Supreme Court decisions give ample protections to the criminal accused because of the serious consequences of imprisonment and the other penalties that accompany a felony conviction.

A crucial, and proper, protection for the accused in the criminal prosecution is that the government must make its case for conviction “beyond a reasonable doubt.” This very high standard of proof recognizes that some persons who have committed criminal acts will go free because the evidence against them is not convincing enough. The choice is a proper one for a society that fears the wrongful conviction of the innocent defendant.

This criminal “beyond a reasonable doubt” standard is the one that guides the capable prosecutors who are weighing a criminal prosecution against the accused students. The Supreme Court has also recognized that due process applies to a wide range of government actions that do not involve the criminal process. The loss of a government job, the deprivation of Social Security or veterans’ benefits, or the suspension of a driver’s license are just a few examples of deprivations that require the government to provide some form of due process. The expulsion or suspension of a student from the University of Maine System is a further example.

The University of Maine System Board of Trustees adopted a student conduct code in the 1970s. Its purpose is to promote and protect the academic, intellectual and ethical integrity of the universities and to protect the health and safety of its students and employees. The citizens of Maine demand no less of their universities. The Supreme Court has regularly upheld the right of public universities to protect these values through non-criminal disciplinary proceedings that can include suspension or expulsion from campus. The Conduct Code was drafted to conform to a significant federal court decision (Dixon v. Alabama State Board of Education 1961) which spelled out the due process required in such proceedings.

Contrary to the editorial’s suggestion, the Conduct Code does indeed provide the accused the right to legal counsel, the right to confront the accuser under oath, the right to examine evidence and witnesses, the right to present evidence and witnesses, and the opportunity to have the accuser respond to questions from the accused or the accused’s legal adviser. The Conduct Code provides that decisions are made according to the “preponderance of the evidence.”

While this standard is less favorable to the accused than the “beyond a reasonable doubt” standard of criminal law, it requires the Conduct Committee to determine that it is more likely than not that the accused student committed the act charged. The “preponderance of the evidence” standard is used in all variety of important noncriminal proceedings including those that deprive persons of significant rights and requires them to pay money to other parties. University fact-finders receive training about the policies and standards of proof before they begin service on the Committee. I would compare their preparation and competence quite favorably with the average juror on a criminal felony jury. Also, all students are told to familiarize themselves with the code of conduct when they first arrive on campus. The editorial’s assertion that due process was “abrogated” in the case of the two students is inaccurate. The adequacy of the Conduct Committee’s adherence to procedures was supported by the actions of the able federal judge who twice denied the students’ requests for a temporary restraining order that they sought because of a claimed lack of due process. Further proceedings continue on campus in accordance with the Conduct Code.

Since federal law and system policies require that the university protect the confidentiality of the Conduct Code hearing unless the students waive those protections, public speculation about the Committee’s action will continue. No University wants to face a situation in which its students accuse other students of serious criminal misconduct. But, it would be irresponsible of the university to ignore such a matter that has such serious implications for the academic environment. A long-standing process, one that is well respectful of due process, exists to resolve such serious matters. It should be allowed to work.

Donald Zillman is Godfrey Professor of Law at the University of Maine School of Law.