A Round Of Applause for Congressman Jared Polis

In response to a question as to the seriousness of the problems with campus rape adjudications, FIRE’s Joe Cohn responded that anything said could be used against the accused in a subsequent criminal prosecution. The 5th Amendment problem, that the defense in campus disciplinary proceedings required the abridgement of the right not to bear witness against oneself.

While true, it was neither a strong point nor remotely sufficient. After all, the natural assumption is only the guilty need to invoke it, and, well, it’s an inchoate problem.  There was no mention of the natural consequences that flow from a wrongful “conviction.”  There was no point made that this is only administrative in name rather than consequence.

burdens

When the Democratic representative from Colorado spoke his mind, it was based on the expressed belief that opponents were making a big deal out of the trivial impact of having to transfer schools.  How can one possibly compare the horror of rape with the insignificance of forcing the rapist to transfer to a different college?

And so a United States congressman uttered these words:

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.

It certainly does seem reasonable, if the issue at hand is safeguarding young women from rape.  A “20 or 30 percent chance” seems more than enough risk to demand protection from such a horrible violation.  And Polis went on:

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.”

After making these comments at the public hearing, Robby Soave at Reason asked Polis a few questions, including whether his view would be the same if his son was the student wrongfully accused.

“If my son had a baseless accusation made against him at a university and it was making his life there miserable, I would suggest he transfer or take courses online,” wrote Polis. “It can be a living hell to go through endless campus investigations. I’ve seen this go down, and there really is no winning once the accusation is made even if the process provides formal vindication. Someone who is wrongfully accused needs to do their best to put it behind them and move on. Trying to re-enroll in the same institution would be a constant reminder of the traumatic experience of being the subject of a baseless accusation.

On the one hand, perhaps no one has explained to Rep. Polis that the words “rape” and “sexual assault” no longer mean what he thinks they do.  Or that students found to be rapists don’t have the simple option of moving on to another college.

Polis says “I’ve seen this go down,” because politicians hate appearing not to be knowledgeable. It’s the lie that elects. But it’s unlikely that he has, except on the TV screen or a briefing memo from an advocacy group.  To a politician, that’s the same as experience. They have a very low threshold for experience.

A friend of mine, elected as a lawmaker after a career as a trial lawyer, told me over a Pabst Blue Ribbon stolen from his intern’s refrigerator that his fellow legislators were utterly clueless when it came to due process.

“They don’t get it at all, and every one of them thinks they’re a fucking genius,” he explained to me.

“So that makes it your job to explain it to them,” I responded.

“Yeah, right. Because the most junior guy in the room gets to tell the big shots who write the laws that make it to the floor how to think,” he replied.

He’s a senior lawmaker now, but he still hasn’t explained due process to anyone. It’s no longer high on his agenda, as his concerns are more geared to member money to pass around to make sure his constituents continue to love him. “If they don’t re-elect me, I can’t do any good,” he once said to me.  He’s been re-elected like clockwork. He has yet to do good.

After Jared Polis made his remarkably clueless assertions, a wave crashed across the twitters about his venal disdain for due process.  But it struck me as more a matter of Hanlon’s Razor, an aphorism that one should never attribute to malice that which can be adequately explained by stupidity.

Perhaps if Jared Polis understood that his grasp of the issues in play was deeply contorted, that on all ends of the problem he was laboring in ignorance, he would come to the realization that he was clueless and foolish, and would remedy his ignorance by changing his absurd assertions.

But after the words left Polis’ lips, the audience burst into spontaneous applause, conclusively proving that he backed the right horse when he chose the virtues of womanhood over the 80% falsely accused.

22 thoughts on “A Round Of Applause for Congressman Jared Polis

  1. Peter Orlowicz

    I’ll bet that’s going to make for some awkward dinners when his son gets older and realizes what his dad said…

      1. Peter Orlowicz

        I think I was most struck (appalled?) by the fact that the honorable Representative is willing to throw his son under the bus even under the premise of a baseless accusation. I suppose that counts for a principled stand on the issue.

        1. SHG Post author

          You give him more credit than I do. I suspect he would be the first to pull every string he could if it touched his world. Where most of us would feel constrained to respond to the “what if it was your son” question honestly, politicians have a far more developed ability to shamelessly spout whatever answers suits the moment’s need.

    1. Lurker

      In fact, a piece of advice, it is reasonable. The premise is the one that has been repeated over and over by SHG: the sexual harassment claims are adjudicated in a horribly unbalanced process where the accused is doomed from the start, regardless of guilt. If you start from the premise, the question is not “How to beat the system?” but “How to survive with minimal damage?” It is the school of thought where having a ready-packed essentials pack by the door in case the secret police comes at night to arrest you seems a reasonable precaution. It should not be a pattern of thought used by a citizen of a democratic country.

      Having such response from the mouth of the legislator should mean he is condemning the system in a radical manner. Instead, he is expressing that he understands the injustice, but embraces it.

      1. lawrence kaplan

        Except Lurker, that there is a proposal that has been put forward that if someone withdraws from a college on account of a charge of sexual assault, that too will be on his permanent record.

  2. Mark

    Thanks for Hanlon’s Razor. I’ve tried to explain this phenomena to people who see a small conspiracy when there is usually just typical stupidity. It’s good to have a name.

  3. Fubar

    For a breeze to blow ships to Troy’s slaughter,
    Agamemnon cut down his own daughter.
    If elections are won
    Sacrificing a son,
    For yours Polis gives imprimatur!

    1. REvers

      Percentages vary, depending on which math you use. For example, in feminist math the percentage is 100% for males.

  4. Paul Thomas

    I just don’t get it.

    Maybe it’s life experiences, or something. I’m a labor lawyer. If a party walks into my office and starts going on and on about how they were fired “without due process,” my reaction is that the guy either (a) has watched way too many episodes of Law and Order, or (b) is a nut.

    And if he says “I was fired even though they were 80 percent sure I was innocent,” my reaction is “sorry, but you’re 100 percent hosed.” There’s no law against firing someone on mere suspicion of criminal behavior.

    Sure, you can try to argue that the “fired for a 20 percent likelihood of being a rapist” was actually a pretext, since the guy was also the lead union organizer, or whatever–but even if he is eventually exonerated of all allegations (!), all the company has to do is say “well, we had a good faith belief he was guilty at the time.” And the courts will lap that s*** up, assuming you’re lucky enough to even make it that far.

    Private entities, like the college Senor Polis was discussing, don’t have to give you “due process.” They can, if they’re feeling extra super-duper generous for some reason, or if the government makes them do it through legislation. But in either case, your rights are not some Platonic ideal of due process– they’re whatever the party in charge says they are. If the government says all you get is a star chamber fake trial for sexual assault before a private college can expel you, then that’s what you get. The government giveth, the government can taketh away.

    One could conceive of a society where disempowered folks always get some defined “due process” rights whenever the Man (broadly defined to include non-state actors) goes after them. I could get behind that notion. But it’s sure as hell not how things work right now. Unless you’re willing to take that position, whining about the lack of “due process” on some particular issue that you care about, while ignoring its absence in every other field of human interaction, is special pleading of the worst sort.

    1. SHG Post author

      One perpetual problem is that lawyers try to analogize an issue with which they are wholly unfamiliar to an issue about which they’re knowledgeable, and in doing so, make everyone around them stupider for it. That’s what you’ve done here. By the way, your first sentence, “I just don’t get it,” should have given you pause to write everything that followed. I probably should have trashed your comment.

      There is no analogy with at will employment whatsoever. This is being forced upon colleges by the DoJ Office of Civil Rights upon pain of losing federal funds, which almost every college, public or private, relies upon for its survival. Public schools are clearly required to provide due process per Matthews v. Eldridge. All schools in California and New York do so as a matter of recently enacted law.

      Private schools acting under force of government regulation are similarly required to do so, and if not (because they get no federal funding), then are subject to their “contractual” duties to the student, most of which included express fairness and all of which include the implicit covenant of good faith. None of it is “at will” as is some employment.

      If you want to try an analogy between education law and labor law, you might want to consider Title VII, NLRA, LMRA, etc., though the analogies are sufficiently imperfect to be of little use. But. much as your niche is absolutely fascinating to everyone, your knowledge of labor law combined with lack of knowledge of college law is a bad mix that only serves to confuse and conflate. Don’t make people stupider.

      1. Matthew

        Thank you for this explanation. IANAL, but I’ve read a number of articles about this, from law professors to advocatges to lawyers, and no one raised the point Paul Thomas raised. When I read his comment, all of a sudden I’m wondering, is this whole thing just bull? What Paul said made a lot of sense to me, even though if he was right, why didn’t anybody else realize such an obvious thing?

        And now I realize why it was totally off base, and why you keep writing about not making people stupider. I was made stupider. You made me less stupid. For that, I thank you.

        1. SHG Post author

          Some people take it as me being mean or rude when I write that, but I realize something they don’t. I know how many people will read these comments, that many won’t be lawyers or won’t have the capacity to parse a comment for accuracy, and will walk away thinking they know the law when they don’t. One of my gravest fears is that SJ will make someone stupider, and they will suffer for it. I do not want anyone to suffer for having read SJ.

      2. Paul Thomas

        I don’t pretend to know whether the government could force colleges, on pain of losing federal funding, to adopt some kind of “reasonable suspicion” standard. That would require some research on my part to avoid the whole making-people-stupid bit. But I don’t have to, on account of that’s not what Polis said.

        He said colleges should be ALLOWED to use a “reasonable suspicion” standard. He then actually defends his viewpoint, by saying that if this standard is too low, the marketplace, presumably in the form of schools protecting the accused by adopting higher burdens of proof, will correct for it.

        You can certainly debate the logic or validity of this theory– seems a bit libertarian for my taste– but your comment is pure straw man.

        1. SHG Post author

          My response to you addressed what you wrote in your comment. You wrote that you failed to understand why due process rights are involved at all because they aren’t in at will employment. That was a remarkably stupid analogy and point. Your raising law that you’re too ignorant and lazy to address reflects on you. I can’t help you there. Lots of lawyers are ignorant and lazy, but then prefer not to prove it publicly.

          Now you’ve moved to an entirely different subject, I assume to deflect attention away from your first comment. What standard should be used is the battle. The argument is whether the standard should be preponderance or BRD. Polis is the first to suggest a lower standard (reasonable suspicion is the lowest conceivable basis, used for a Terry stop, below even probable cause as required for a search warrant, another bit of law you’re likely unaware of), and that he would have no issue with the Blackstone ratio reversed.

          There have been some recent decisions on campus adjudications. Had you been familiar with them, you might have known better than to offer your initial comment. You’ve kinda blown it in every conceivable direction.

          As for what standard should be applied, there are policy and constitutional issues at hand. If the consequences are punitive, then regardless of whether the adjudication is called civil, it is a criminal sanction. If that’s the case (as I argue in the post), then BRD should be the constitutionally required standard.

          Now, I’ve shown you enormous kindness by explaining really obvious stuff to you, allegedly a lawyer, in the face of your ignorance, laziness and stupidity, not to mention calling my argument a strawman without either noting what the strawman was or noting why it was a strawman. Amazingly, your laziness knows no bounds. That’s as much time as a lazy, ignorant asshole is worth to me.

        2. Sgt. Schultz

          What are the chances this douchebro, having now conclusively proven he’s a fool, will quietly walk away? Wanting to know whether this fool is for real, I googled Paul Thomas in labor law, and there is no such lawyer. So he’s just another troll trying to add stupid to the mix.

          Ban the asshole before you go through the same dumb crap that happens with every troll.

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