What Burden of Proof Should the ETS Have Used in Determining If the Students Cheated

What Burden of Proof Should the ETS Have Used in Determining if the Students Cheated?

General public policy: freedom of action for any non-governmental organization.

Intervening public policy: limits application of the general public policy: the obligation to act reasonably to avoid harm to others.

Specific Public Policy Considerations on the issue of the burden of proof that the ETS should use:

The integrity of the test is important to the ETS and to millions of other test takers.

Being branded a cheater is a major penalty for a student but is not a criminal penalty.

Losing thousands or even millions of dollars is a substantial penalty.

The balance of power between the student and the ETS is lopsided but not as much as the imbalance of power between the state and a citizen.

The ETS serves a public function to properly assess students. In that sense its function is similar to that of an administrative agency.

The ETS has substantial expertise in giving tests and evaluating the results.

The burden of proving a charge beyond a reasonable doubt is very difficult to meet and has seldom, if ever, been extended beyond criminal cases.

The burden of proving something by clear and convincing evidence is reserved for special situations with substantial penalties beyond awarding damages or court orders.

There may be additional public policies involved.

Comparisons:

What options are there and what can they tell us?

Beyond a reasonable doubt -- criminal cases:

Evidence that leaves a person with an abiding conviction that the charge is true;

Is the ETS in a similar position to the government? Are the rights of the students as important as the right to be free from mistaken imprisonment?

Clear and convincing evidence -- punitive damages:

Evidence showing it is highly probable that the fact is true;

Is this more like a punitive damages case in which the stakes are really high for the students?

By a preponderance of the evidence -- civil cases:

Evidence that the facts on which the claim is based are more likely true than not true;

Is the situation with the AP test more like a civil case?

Does it offend a sense of justice for the ETS to be able to take away the test scores on any rational basis?

Stand and Deliver – Burdens of Proof Chart