Earlier today, FIRE’s Joe Cohn testified before the House Education and Workforce Committee’s Subcommittee on Higher Education and Workforce Training during its hearing on “Preventing and Responding to Sexual Assault on College Campuses.” During the hearing, Joe elaborated on why the adjudication of sexual assault allegations should not be left solely to educational institutions, which are not properly equipped to perform this function.
We’ll have more in-depth coverage of the hearing on The Torch soon, but one moment in particular stood out as warranting an immediate response. About an hour and 56 minutes into the video below, Representative Jared Polis suggests that the “preponderance of the evidence” standard—which requires only that fact-finders be 50.01 percent certain in order to find an accused student guilty—may be too high of a bar.
Reason’s Robby Soave reviews Polis’ statements and Joe’s apt response:
[Polis said] “It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard. Perhaps a likelihood standard…. If I was running a (private college) I might say, well, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual.”
Cohn responded that a burden of proof standard even lower than the preponderance of evidence standard would unquestionably violate students’ due process rights. The preponderance of evidence standard is itself an abridgment of due process unless it is accompanied by balancing factors such as cross-examination, subpoena power, and competent judges and juries, according to Cohn.
Astonishingly, Polis continued down this line of thought:
[“]It seems like we ought to provide more of a legal framework, then, that allows a reasonable likelihood standard or a preponderance of evidence standard. If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”
(Emphasis [Soave’s].) That last line drew applause from the crowd.
As Joe pointed out, students expelled for sexual assault find that the “rapist” label follows them for life, hindering their professional careers and other goals. And many lawmakers are pushing for exactly this result, with legislation designed to make obvious to recipients of a student’s transcript when that student has been punished for (or has an unresolved investigation for) sexual assault. Of course, if the student actually committed the crime, this result is appropriate. But to do as Polis suggests and derail a student’s life because of the mere accusation that he or she might have done something wrong—without a majority of the evidence pointing to his or her guilt, and even with the vast majority pointing to his or her innocence—is irretrievably incompatible with basic principles of fairness and justice.
This is especially true because Polis shrugs away not only the idea that findings of guilt should be made with some amount of certainty but also the absolutely critical idea that each case be decided based on the facts surrounding that individual allegation. If “maybe one or two” of 10 people committed an assault, he says, all 10 accused students should be expelled. This is different—and even worse—than his initial statement that a student should be expelled if some, but not a majority, of the evidence weighs against him.
But ignoring that problem for a second, let’s look at the implications of what Polis is saying about those “one or two” who “did it”: Those rapists can simply continue their schooling at another institution. Does he have no reservations about the danger this would pose to students at the transferring student’s new institution? How could bouncing attackers from school to school possibly protect the safety of American college students?
As Joe pointed out in his oral testimony, the bottom line is that rape is a crime and should be treated as such. That means providing meaningful due process protections for the accused and serious punishments for those found guilty. Colleges provide neither. Proponents of the status quo are turning a blind eye to its failings for both victims and the accused.
Soave sent Polis some follow-up questions about his remarks; read his article in full for the answers.