Colorado Congressman Jared Polis claimed in his local newspaper that he “misspoke” when he called for innocent college students to be expelled simply for being accused of sexual assault.
He can claim whatever he wants, but his actions last week tell a far different story than that of someone who merely didn’t choose his words carefully.
First, we have to go back to his original statement, made during a House hearing on campus sexual assault. During a back-and-forth with a panelist advocating for due process rights for students accused of sexual assault, Polis said it’s better to throw out accused students even if they’re likely innocent, just in case.
“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.”
And if Polis says he erred in making this statement, then the audience must have erred in applauding it, because that’s what they did.
But this was Polis’ second controversial comment at the hearing about lowering standards for expulsion. Shortly before he made the above comment that sparked the backlash, he argued that schools should be able to use a lower standard of evidence than the preponderance of evidence standard currently required.
“I mean, if I was running [a private institution] 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 of promoting a safe environment, use an even lower standard than a preponderance of evidence, like even a reasonable likeliness standard?”
The preponderance standard requires college administrators — under pressure from the federal government to prove they are acting tough on campus sexual assault — to be just 50.01 percent sure a student committed the assault. A lower standard would mean expelling students when schools are more than 50 percent sure the student didn’t commit the assault.
Eugene Volkh, a respected professor of free speech law who writes his own Washington Post blog, suggested that there are cases where even a “whiff of suspicion” should be enough to remove someone, but asserted he never believed “being a college student would or should be one of them.”
Polis’ take on the issue did not end at the hearing. Reason’s Robby Soave followed up with Polis, and the Colorado Democrat doubled down on his position.
Polis suggested that if his own son were falsely accused of sexual assault, he would tell him to “transfer or take courses online.” He apparently doesn’t realize that there are efforts in some parts of the country to mark students’ transcripts if they try to transfer rather than go through a one-sided, lengthy school investigation. Nor does he seem to realize what else comes with being accused of sexual assault — anonymous phone calls or news articles written when an accused student transfers.
Take Patrick Witt. Although no formal complaint was lodged against him, and therefore no investigation conducted, anonymous phone calls accusing Witt of sexual assault were made to the Rhodes Scholarship committee considering him for the prestigious award, and also to a perspective summer employer. Whenever Witt applies for a job, he may have to address the accusation. When Witt applied to Harvard Law School, he had to address the accusation.
Polis could argue that Witt was able to get into Harvard, but other students have not been so lucky (if you could call it luck). Other students have had to sue or appear likely to sue in order to get their names cleared (on paper at least) in order to transfer to another school. The bottom line is that it’s not as easy as Polis makes it seem.
Polis went on to tell Soave that if schools were to implement a “reasonable likelihood” standard like he suggested, then they should at least throw the expelled students a bone by allowing them to withdraw without a notation on their transcripts. This, of course, wouldn’t protect against those anonymous phone calls.
“University of Colorado has an elected board of Regents. They should decide if they want to have a reasonable likelihood or preponderance of the evidence standard,” Polis said.
He added a sort of sick free market aspect to his proposal, suggesting universities that expel too many students, thereby giving accusers too much power, “will hurt their competitive standing in the marketplace.”
“There is room for all sorts of standards in the marketplace and prospective students will choose the right balance based on their preferences and the reputations of the various universities,” he said.
His comments drew a harsh response from the Daily Camera, a Boulder, Colo., newspaper, which called his idea “spectacularly bad.” This — and no doubt the ensuing social media storm — led Polis to respond in that same paper with a column claiming he “misspoke.”
While claiming he misspoke and that advocates for harsher campus processes don’t actually want innocent men accused (some do, but the policies being advocated by these groups seem to indicate that they don’t believe any man is innocent if accused), Polis also included debunked surveys claiming one in five women will be sexually assaulted in college.
He continued to argue that since the criminal justice system has been inadequate in the past, the creation of a pseudo-court system staffed by campus administrators with political marching orders is justified. He also cites the anti-discrimination law Title IX to claim colleges have a “unique obligation” to adjudicate felony crimes. Yes, a reinterpretation of Title IX in 2011 (a reinterpretation that was not brought through the proper channels) mandated that colleges adjudicate this particular felony, but the criminal justice system has had that mandate long before Title IX was passed in 1972.
That is, again, because sexual assault and rape are crimes, not disciplinary matters like cheating or plagiarism. And campus hearings are not legally confidential, despite what colleges may claim. The actual criminal justice system can subpoena the records and use them to get around a Miranda warning for accused students and other due process protections.
Polis claims advocates of due process want schools to “wash their hands of all responsibility” on the issue. That’s not what advocates want. Due process advocates want due process for the accused – an innocent-until-proven-guilty standard instead of the current campus standard of guilty-until-proven-innocent. But due process advocates also believe that schools should be able to take interim measures such as moving dorms or switching classes, and be able to provide support services to accusers and help them through the criminal process.
But due process for what are still criminal accusations should not be based on where the accusation is made.
Polis can claim he meant something other than what he clearly said multiple times, but I doubt he would have written the article had he not received criticism for his comments.
