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For Campus Sexual Assault, Slate’s Bazelon Calls for Expulsion—and ‘Clear and Convincing’

By June 13, 2014

Last week, Emily Bazelon—senior editor at Slate and the Truman Capote Fellow at Yale Law School—penned a column arguing that suspending students found guilty (or “responsible,” to use student conduct administrators’ preferred jargon) of rape isn’t a sufficient penalty. Instead, Bazelon says these students should be expelled:

[U]niversities should stiffen the standard punishment, so that a student who is found responsible for rape (let’s call it what it is) can expect to be expelled (though accused students should be able to argue for exceptions).

Bazelon is an honest, careful thinker, as anyone who’s read her thoughtful writing about bullying would attest. (See FIRE President Greg Lukianoff’s Huffington Post review of her recent book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Character and Empathy, for evidence of these qualities.) So before she reaches this conclusion, she recognizes the “legitimate fear” held by accused students and civil liberties advocates that colleges may “become too quick to find accused students culpable” in the face of new national attention to the problem of sexual assault.

Indeed, the avalanche of lawsuits filed by accused students against their schools in recent months suggests that this may be exactly what’s happening. As prominent risk-management attorney Brett Sokolow told the Chronicle of Higher Education yesterday, “All of this pressure from the White House and [the Department of Education’s Office for Civil Rights] has been communicated, and these university panels believe they are supposed to vote a certain way now. Campuses are saying, We have to comply with Title IX, so we have to side with the victim.”

Given the importance of this countervailing concern for due process in campus hearings, Bazelon acknowledges that adjudicating such serious allegations with our judiciary’s lowest evidentiary standard—the “preponderance of the evidence”—isn’t sufficient. Instead, Bazelon joins FIRE in calling for the “clear and convincing” standard. As she writes, “I think the Department of Education should raise the standard of proof to clear and convincing evidence, to underscore the importance of (relative) certainty.” In return for raising the standard, Bazelon argues, the punishments for being found guilty can be stiffened.

Bazelon’s endorsement of the clear and convincing standard in exchange for harsher penalties reflects our legal system’s core understanding of how to determine what process is due to the accused: The more serious the charge, the greater the procedural protections required. Likewise, if penalties are to be harsher, then the process provided the accused must be more thorough. FIRE’s been making this point since our first letter to the Office for Civil Rights, following their April 4, 2011 “Dear Colleague” letter, which mandated use of the preponderance standard. As I wrote back in May of 2011:

Given the increased likelihood of much further-reaching negative consequences for a college student found guilty of sexual harassment or sexual violence in a campus judicial proceeding, greater protections are required, not lesser. … [T]he lower standard of proof serves to undermine the integrity, accuracy, reliability, and basic fairness of the judicial process. Insisting that the preponderance of the evidence standard be used in hearing sexual violence claims turns the fundamental tenet of due process on its head, requiring that those accused of society’s vilest crimes be afforded the scant protection of our judiciary’s least certain standard.

The standard is appropriate for most civil court cases, because, as my colleague Joe Cohn has pointed out, there are many procedural safeguards available to defendants in civil court—impartial judges; a jury; representation by counsel; discovery; rules of evidence; the opportunity to settle a case out-of-court; and testimony under oath, just to name a vital few. On campus, none of these procedural protections are guaranteed. Many are quite rare, despite the fact that the charges at issue allege criminal conduct—or, more accurately, conduct that would be criminal if being adjudicated in a real court of law, as it should be.

Responding to Bazelon’s piece in a blog entry for the Washington Post this week, Daniel W. Drezner makes a related point about the balance between the punishment meted out by campus courts and the process due to the accused:

[A]s Bazelon goes on to note, this has led to an unexpected outcome:  a greater number of findings of sexual assault, but also relatively minor punishments short of expulsion for those found guilty of rape.

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Here’s the thing though: if you’re going to raise both the standard of proof and the punishment if found guilty, I think you’re also going to need to shift the adjudication process back towards a more legal set of norms and structures.  Civil liability is based on a preponderance of evidence standard, but I’m also rather certain that civil litigators get to cross-examine witnesses (in Massachusetts at least).  If severe punishments like expulsion are going to be meted out, there has to be a due process that is fair to the accused and recognizes some kind of Sixth Amendment protections. Or, to put it more plainly, expelling a student from a university without any direct cross-examination of the accuser doesn’t seem like a viable system.

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That’s the tradeoff. If you make it easier for rape victims to come forward with a non-adversarial adjudication process, the punishments of the accused will likely fall short of expectations.  If you make the punishment fit the crime, then you also have to shift back to a more legalistic set of procedures, which will be more daunting to the accused. I’m not happy about this tradeoff — but it can’t be ignored, and unfortunately I don’t think it can be ameliorated.

Drezner’s right: This tradeoff can’t be ignored. So far, it has been, and lawsuits have followed. And as he suggests, colleges can’t increase punishments while reducing due process protections without making the process fundamentally unfair. In the meantime, students are angry that individuals found “responsible” are being allowed back on campus after a suspension. For one example, check out the ongoing controversy and protests at Stanford University, where a student was found “responsible” of committing sexual assault, yet deemed not a threat to campus, and thus will be allowed to begin graduate school at the university in 2016.

As long as the campus judiciary is tasked with handling these cases, and as long as the due process protections provided are minimal, the controversies and lawsuits will continue. The bottom line is that when the alleged conduct in question is heinous and reprehensible, as it is in sexual assault cases, campus courts are unequipped to provide either the necessary process due the accused or the punishment justice demands for the victim and society if the accused is found guilty. Relying on the campus judiciary to handle serious crimes like rape continues to fail all involved.

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process