At a congressional hearing on campus sexual assault, Colorado Rep. Jared Polis suggested that expelling students based solely on the idea that they might have committed a crime is an acceptable standard. And the hearing audience applauded him.
Polis, a Democrat, was discussing due process and standards of evidence as they apply to colleges and universities adjudicating sexual assault. Currently, colleges must be only 50.01 percent sure that an accusation is valid before punishing an accused student (more on that later). Polis began advocating for allowing colleges to use a lower standard than that.
"I mean, if there's 10 people that have been accused and under a reasonable likelihood standard maybe one or two did it, seems better to get rid of all 10 people," Polis said. "We're not talking about depriving them of life or liberty, we're talking about their transfer to another university."
For this, the audience applauded.
So to Polis, that eight or nine students are likely innocent should not preclude them from being expelled, because they had been accused of sexual assault.
Polis had been discussing the standards of evidence with Joseph Cohn, the legislative and policy director for the Foundation for Individual Rights in Education. Polis had first asked Cohn whether he thought the standard of evidence or the implementation of that standard on campuses was wrong. "I think both," Cohn said, before being interrupted by Polis.
Polis then suggested that schools be allowed to use an even lower standard of evidence than preponderance.
"I mean, if I was running one I might say 'well, you know, even if there's a 20 or 30 percent chance that it happened I wouldn't want … I would want to remove this individual,'" Polis said. "Why shouldn't a private institution, in the interest in promoting a safe environment, use an even lower standard than a preponderance of evidence, like even a reasonable likeliness standard?"
Not all colleges and universities are private institutions. Public universities must adhere to reasonable due process protections afforded to students by the U.S. Constitution. Cohn noted this in the brief moment he was able to respond before being interrupted by Polis, who asked if the preponderance of evidence standard is the lowest standard allowed by due process. (Ignore the fact that due process is granted in the Constitution, it is not a separate document granting rights.)
Cohn said it was the lowest standard in the court system, before again being cut off by Polis.
Polis then asked Cohn if a university could use a lower standard of evidence. Cohn responded that such a lower standard would probably have no chance of withstanding a due process challenge by an expelled accused student. Polis asked if the preponderance of evidence standard would hold up to such a challenge, to which Cohn responded that it might or might not "depending on what other procedural protections it's coupled with."
Those procedural protections might include discovery, legal representation, rules of evidence, subpoena power or sworn testimony – none of which are allowed in campus courts.
Earlier in the hearing, another panelist, Dr. Penny Rue from Wake Forest University, argued that the preponderance of evidence standard was the "most equitable."
Rue said the standard "precludes giving presumption for or against either party" and added that "Any other standard has already tipped the scale on who to believe."
Who cares about being innocent until proven guilty, right? This is campus sexual assault we're talking about! It's a crime that must not be treated like a crime!
Of course that is absurd. If the preponderance of evidence standard were the most fair it would be used in all divisions of the court. And while it is used in civil courts, as Cohn noted, there are other procedural protections that make it acceptable. Colleges and universities are currently using a standard of evidence that provides a 50/50 chance that someone is a rapist, and providing no due process (to either the accused or the accuser) to make that determination. They're basically flipping a coin, a coin that is being weighed heavily toward a finding of guilt by the federal government.
After Cohn discussed the procedural protections that should come with a preponderance of evidence standard, Polis interrupted yet again to say he believes Congress should provide a "legal framework" that would allow schools to use a lower standard than being 50.01 percent sure an accused student committed sexual assault (which, remember, is a felony being adjudicated outside the criminal justice system).
That is when Polis made the claim that it is better to expel 10 accused students than to find the truth. Cohn tried to respond to this claim, as the audience applauded Polis' comment, but was again interrupted by the congressman.
Applying Polis' logic in other situations, then anyone accused of any crime might as well be punished, just in case. The legal system does not operate this way in part because it is an appalling human rights violation. This witch-hunt mentality is common on college campuses. It allows schools to deny students any semblance of due process in the pursuit of combatting sexual assault.
It is exactly why the justice system, not colleges, should handle accusations. Colleges suffer from an institutional bias that previously hurt accusers but now threatens to derail the lives of innocent young men.
As to Polis' point about not depriving accused students of life or liberty, this, too, is not accurate. Expelled students do not simply transfer to other universities. There have been cases where accused students have transferred, but students expelled for sexual assault do not have an easy time continuing with their lives. They might not go to jail, but it often takes them years and thousands of dollars to move on.
If they are actually rapists, they deserve that disruption. They actually deserve to be in jail, but the other three panelists testifying at the hearing, along with nearly every congressman who asked questions, didn't seem to believe jail was necessary.
But we're talking about students who are just as likely not to have committed the crime as to have committed it. And for students who were wrongly accused, who had no due process protections to prevent them from being expelled in cases where an accuser was lying, being expelled is a big deal.
As Cohn noted, schools aren't rushing to admit students expelled for disciplinary reasons, much less sexual assault accusations. Students who are expelled lose years of their lives building connections and have to hold off on pursuing their careers. We know that not having a job early out of college can depress a person's long-term wages. Delaying the graduation, education and career of an accused student based on little more than an accusation will likely have a profound effect on his life, future career and earning potential.
This is not something to take lightly.