At Volokh Conspiracy, Eugene offers an unusual paradigm to explain why the new rules of engagement for university discipline being forced down the throats of higher education by the DoJ and DoE aren’t, as has been argued here, totally insane. Among other things, it requires colleges and universities receiving federal funds to employ a “preponderance of the evidence” standard in determining guilt in their disciplinary proceedings.
First, let’s think of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt as probability thresholds. Preponderance of the evidence means that the university should expel or discipline the accused student if there’s just a bit more than a 50% chance that the student is guilty. Clear and convincing evidence might be seen as requiring a 75% or 80% probability, or thereabouts. Proof beyond a reasonable doubt might be seen as requiring a 95% probability. These are oversimplifications, to be sure, but they are probably the most helpful way of looking at these standards.The percentage for preponderance is well established as being more than 50%, so whether one takes issue with Eugene’s numbers for the other standards isn’t critical. They’re higher, which is all that matters for the purposes of his analysis.
And each of these probabilities might correspond to a number n in the statement that “better that n students guilty of sexual assault remain at the university, with no discipline imposed, than one innocent student be expelled or otherwise disciplined.” Proof beyond a reasonable doubt would be something like “better that ten students who have committed sexual assault remain at the university unpunished than one innocent student be expelled.” Proof by clear and convincing evidence would be something like “better that three guilty students (but no more) remain at the university than one innocent student be expelled.” Proof by a preponderance of the evidence would be something like “better that one guilty student (but no more) remain at the university than one innocent student be expelled.”Interesting, right? A very different view of the question from the perspective of how much risk should the university, and the students under its care, should endure for the benefit of the accused. As an aside, the link in Eugene’s quote goes to a law review article by his brother, Sasha, which is, in my humble opinion, the best ever written, and definitely worth your time to read.
But this isn’t sufficient to support his point, as the general notion of “n” guilty men has already been decided for society at large in the setting of criminal law, which is why no one can be convicted of a crime except upon proof beyond a reasonable doubt. To get over this hurdle, Eugene argues:
Thus, the crux of Eugene’s argument is that the “conviction” of a serious allegation, say rape, by a college disciplinary board is more akin to a civil verdict than a criminal verdict. No one goes to prison. No one is executed. Rather, being tossed out of the university is a lesser sanction than financial ruin, or comparable to the loss of a job, and if preponderance of the evidence is sufficient for those, then it is good enough for college.Of course, in criminal cases the standard is proof beyond a reasonable doubt. In criminal cases, a person’s liberty or life is usually at stake, so the legal system does say, “better than ten guilty people go free than one innocent person go to prison (or be executed).” But that this is true in criminal cases doesn’t tell us whether the same should be true when something less serious — both in terms of tangible loss and in terms of public condemnation — is at stake.
That’s why in civil cases, the more likely than not standard is routine. If you sue me, alleging I breached a contract or injured you in some way, you can prevail under this standard, even if the result is that I am financially ruined.
Should we say “better that 10 rapists be allowed to stay at the university than one innocent student be expelled”? I don’t think so. “Better that 4 rapists be allowed to stay at the university than one innocent student be expelled” (the clear and convincing evidence standard)? I doubt it, partly because we don’t say this even when a lawsuit risking a defendant’s entire life savings is involved, or when the loss of a job and perhaps a career is involved.Whether you agree with Eugene’s relative assessment of worth is likely based on which side of the equation strikes closer to home, but it strikes me that he has omitted two major components from his analysis that can’t reasonably be ignored.
First, Eugene recognizes that the DoJ and DoE have simultaneously watered down (as in, eliminated for all practical purposes) due process, but takes that out of the equation. It can’t be removed under ceteris parabus, as it is a critical, and perhaps more critical than the standard of proof, component of the process. Without a substantively and procedurally fair process, it really doesn’t matter much what standard is used. The accused loses because the accused isn’t given the ability to defend himself. The standard of proof only matters if due process is honored.
The second missing piece is that imprisonment, or execution as the case may be, is only part of the sanction imposed for the “conviction” of a crime. A student found to be a rapist and expelled from a university will be saddled with the “conviction” forever in all aspects of his life, with the moral condemnation that goes with it. He will be uneducable and unemployable. He may never be able to marry, as what woman will marry a convicted rapist, and likely never have a family. He may never be able to find a place to live, as no one will rent to a convicted rapist. The list of punishments that society will impose is endless, and there is nothing the “convicted” student can do about it.
While the comparison to civil adjudication raises questions, perhaps the better answer isn’t that the standard of proof for universities be reduced, but that the standard for anyone accused of conduct that would otherwise be criminal, and carry with it the moral condemnation that society imposes for people convicted of wrongdoing, be raised to that required for a criminal conviction.
While no one wants to put any college student (or anyone else, for that matter) at needless risk of being the victim of a crime, the idea that we can sufficiently reduce that risk by lowering jurisprudential determination of “n” guilty men is worth the conviction of an innocent doesn’t bear out. Instead, the relative risk remains, and the harm done to the wrongfully accused is devastating.
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Thank goodness a sexual assault victim isn’t, you know, “saddled with the [sexual assault] forever in all aspects of [her] life” or anything. Otherwise it’d seem like you were minimizing their harm in favor of the harm to the accused.
Before someone is a sexual assault victim, Max, the crime has to have happen. Before someone gets punished for a sexual assault, the accused has to be proven to be the person who did it. Of course, some people subscribe to the view that any accusation is good enough, regardless of proof.
If colleges were reviewing their cases in front of something resembling a jury and vaguely reminiscent of a court of law – preponderance of the evidence would be the best standard of proof for all the reasons you and Volokh list. I would agree 100%. But, the problem is school disciplinarian boards are anything but fair and student juries aren’t randomly picked from the population – they are there because they want to be. Preponderance of the evidence in a school hearing is less 50/50 and more like the inverse of reasonable doubt. At the slightest hint of any wrongdoing, they err on the side of caution and you get expelled or disciplined.
While this is my opinion formed from fist hand experience, what I have seen at student disciplinarian hearings and heard from friends at their schools – you can get a good idea of what I am talking about by reading a couple incidents at FIRE. My alma mater is on there…
While I’m not as inclined as you are to reduce the standard to preponderance of the evidence (anything more than 50%), it’s absolutely clear that the deprivation of anything remotely resembling due process is the kiss of death. Unlike Eugene, I can’t begin to consider a lower standard in the absence of due process. They are part of an integrated system, and tweaking one without the other is a pointless argument.
This comment makes no sense to me. If it was logical to erode due process and the standard of proof relative to the length and breadth of harm to the victim of the crime, the only trials we would have would be for misdemeanors. Suspected of murder? Straight to jail (or to the executioner) for you without trial, because your (alleged) victim doesn’t even have a life left to be saddled with the burden of your crime.
It’s not worth trying to make sense of Max. Only Max can make sense of Max. The rest of us enjoy him for his good looks, pleasant disposition and enthusiasm.
You have analyzed this issue by weighing the harm of a wrongful expulsion versus the harm of an unpunished crime. Your scale, however, is missing a component: along with the unpunished crime is a victim who will be continued to harmed by a finding against them and by the continued presence of their assailant on-campus.
In other words, if you’re going to fret about the secondary side effects of a wrongful punishment, then you need to also give consideration to the secondary side effects of a wrongful vindication. You consider the former to be of great importance and the latter to be unworthy even of mention.
Well, not quite. An “unpunished crime” does not necessarily mean that a victim will continued to be harmed by the presence of their assailant on campus. It is possible, but not a necessary side effect. And yet, the entire concept of “n” guilty people (notice I didn’t use “men” this time but the gender neutral people?) is that the system, whatever the standard of proof, favors not convicting the innocent over convicting the guilty? That’s the very reason we have something called a “standard of proof.”
Otherwise, there would be no need for process of any sort, and everyone would be convicted upon probable cause. While you may be good with that, most of society isn’t. Not even Scalia. Not even the DoE, though they might if they thought they could get away with it.
Oh, and I nearly murfed my Oreo cookie because of your comment. Do you have any idea how painful that can be? I hope you’re proud of yourself.
First of all, the policy doesn’t apply just to rape and sexual assault as traditionally understood. That concept has been expanded beyond all recognition to include sexual episodes that historically have been universally considered consensual, and that still are considered consensual by most reasonable people.
Second, we’re also talking about “sexual harassment,” which in practice broadly means any words or actions, no matter how remotely sexual in nature, that make a woman feel annoyed, offended or uncomfortable, reasonably or not. The balance of equities will very seldom be “college kid expelled vs. woman raped.” It will be “college kid expelled vs. thin-skinned woman angered or offended.” These accusations will usually be made tactically to retaliate against politically incorrect speech. In fact, they will be used almost exclusively for that purpose.
Third, to the extent that more than politically incorrect speech is involved, these are almost always “he said, she said” cases. Since we don’t know who is telling the truth, we begin with the evidence poised exactly 50/50 for and against the man. In that context, the “preponderance of the evidence” means that if there is a single grain of evidence tending to support the woman’s version of events, the man loses. And of course, that’s only if the committee that decides the issue is fair, but…
Fourth, the committees that decide these issues are generally today, and will continue to be, packed with the sort of people who are hostile to men and reflexively support an angry or aggrieved woman. So, as a practical matter, “preponderance of the evidence” means that the man will usually bear a heavy burden to prove his innocence.
Fifth, the guidelines make it clear that if a committee does exonerate a man, the DOJ and DOE will descend on the school to second-guess the committee’s decision and strong-arm schools into appointing committees that will never exonerate again.
The new policy will be a vicious weapon for political activists, bitter ex-girlfriends and regretful one-night-stands to harass and destroy the lives of men who fall into their clutches.
This was the subject of earlier posts about the policy, rather than this post about Eugene’s argument in favor of the preponderance standard.
I’m glad you admit it’s “possible” that a sexual assault victim might be harmed by the continued presence on campus of an erroneously vindicated assailant. I’d go so far as to say “probable.” Either way, it should plainly be part of the “n” analysis.
But, if you want to switch the argument to focus on due process, so be it. What process is “due” when, for example, a student assaults another? A student is caught cheating? A student contests a grade? A student alleges theft by another?
Do you really believe continued attendance at a particular university is a legal right on the same order as, say, personal liberty?
True. The third point is the one that I started with before I got worked up and started ranting.
My point was that in the usual “he said/she said” case, the woman’s version and the man’s are virtually identical: they had some drinks, they went to his or her room, and they had sex. The only point on which the versions differ is that he says she consented and she says she didn’t. There’s nothing internally inconsistent or inherently improbable about either story; there’s just the one question of whether she said yes or no.
The vast majority of cases are exactly like that. So in the vast majority of cases, we don’t have any way of knowing whose version is true, and the evidence begins poised exactly 50/50 for and against the man. In those cases, the preponderance of evidence standard means that the man should be convicted based on a mere scintilla of evidence against him, or even something less than evidence – a flicker of his eyebrow at the wrong moment when he testifies to his version – or just the judges’ vaguest feelings and most insubstantial hunches.
And if we’re going there, why should we bother looking for that scintilla? If there’s no evidence one way or another besides the parties’ testimony, and we don’t have the slightest opinion at all about who’s telling the truth, so that the evidence remains poised 50/50, doesn’t Volokh’s reasoning tell us that we ought to convict in that case too? Because if we’re going to balance rape vs. expulsion, what’s the difference between a 50% chance that there’s been a rape and a 50.01% chance? Or for that matter, a 33-1/3% chance if we think his version is twice as likely to be true as hers? Is rape only half as bad as expulsion? Once you’ve decided that the important thing is to balance the possible injuries to the accused and the alleged victim, and since we all agree that rape is a much, much more serious injury than expulsion, you have decided that any injustice to the man is irrelevant, being utterly outweighed by the slightest possibility of his guilt.
The only logical end to this thinking is that the man should be expelled unless he can prove his innocence, which is impossible. To be accused is to be convicted. That’s the result that this reasoning leads to and, with the other ways the system is being stacked against men, that is the result that the new policy will actually have.
I will refrain from ranting about the explosion of false accusations and extortionate threats of false accusations that we can expect when this becomes government policy.
No one here is disagreeing with you, but this isn’t your soap box. These points have already been made.
And you’re back to playing the village idiot. Bye, Max.
It seems here like your argument could be identically moved to any case in the criminal justice system, where I don’t think there’s much contention among any serious observer that due process is a good thing.
I guess my question to you is do you believe that the reasonable doubt standard of proof is appropriate in a trial where the charge is rape, since all the same issues are in play?