When due process is eroded for a disfavored class of people, many innocent people are harmed, and the exception to due process tends to expand over time, causing ever more damage to the rule of law. But left-wing legislators seem blind to that danger, especially when the people being railroaded are falsely accused of civil-rights violations or discrimination.
Congressman Jared Polis (D-Colo.) wants universities to expel students accused of sexual assault even if they were likely innocent, as long as there is a 20 or 30 percent chance of guilt. Or perhaps even less: he says that if one or two students out of ten might be guilty of sexual assault, all ten should be expelled:
“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. … 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.”
Even before Congressman Polis said this, some students were already being expelled or suspended based on very weak evidence, such as the examples given here, here, here, here, here, here, and here at Minding the Campus. The Supreme Court ruled students have due-process rights in Goss v. Lopez (1975), but colleges are more worried about liability for sexual harassment or assault under the civil-rights statute Title IX than they are about being sued for due-process violations.
Similarly, a left-leaning Spanish province, Catalonia, recently enacted an LGBT bias law under which “the person accused of homophobic acts will have to prove his innocence, reversing the presumption of innocence until proven guilty.” Although this seems to violate European human-rights provisions, left-wing gay-rights activists, echoing their American counterpart Polis, defended the law by saying that it will make convictions easier “in instances when [discrimination] is very difficult to prove” — that is, precisely cases where the accused may be innocent and the case is weak.
Polis seems blind to the fact that policies unfair to the accused can also harm LGBT people like himself, not just heterosexual men, as a lawsuit involving Brandeis University illustrates (a gay student was found guilty by his university for harmless acts like kissing his sleeping boyfriend, who was ruled unable to “affirmatively” consent). Commenters at the gay publication The Advocate were largely disapproving of Polis’s comments, as was Polis’s hometown paper the Daily Camera, which called his proposal a “spectacularly bad idea.”
Congressman Polis’s comments came in response to testimony from Joe Cohn of the Foundation for Individual Rights in Education (FIRE). FIRE and civil-libertarians have objected to Obama administration demands that colleges provide fewer due-process protections for people accused of sexual harassment or assault than for people accused of other offenses.
As a Yale Law Journal article noted in 1987, “Courts, universities and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence” (a 75% chance of guilt). This was true even for people accused of sexual harassment or assault. But in 2011, the Education Department’s Office for Civil Rights (OCR), where I used to work, commanded colleges to reduce the burden of proof in such cases to a mere preponderance (a 50.1% chance of guilt).
OCR’s argument was that campus sexual harassment and assault are civil-rights violations, for which the burden of proof cannot be higher than a mere preponderance standard. At the time, I explained the legal flaws and logical fallacy of OCR’s argument here, and why courts should also reject its command for violating the Administrative Procedure Act. But aside from occasional criticisms of OCR’s demand by faculty and higher-education groups, colleges did nothing, and acquiesced in OCR’s demand.
Emboldened by this timidity, the administration began ratcheting up its attacks on due process, going from mere regulatory overreaching to demanding constitutional violations. A White House Task Force demanded that students “not be allowed to personally cross-examine each other,” even though the Supreme Court has described cross-examination as the “greatest legal engine ever invented for the discovery of truth,” and courts have sometimes required it in campus sexual-assault credibility contests. The Office for Civil Rights went on to demand that some colleges reopen previously dismissed allegations, a demand smacking of double jeopardy, and it demanded that colleges exclude certain types of relevant evidence that can point to an accused’s innocence, drawing criticism from legal scholars like George Mason University law professor David Bernstein. Recently, it demanded that a college provide “remedies” (such as academic assistance or counseling) for a student that even OCR conceded had likely made a false allegation. It has also demanded that colleges restrict constitutionally-protected speech that offends listeners, even when it does not rise to the level of being sexual harassment in the eyes of the courts.
Polis now wants to enact legislation that would provide “a legal framework” for an even fewer due-process protections on campus, such as his proposal for expelling people based on a 20 percent chance of guilt, which he calls the “reasonable likelihood standard.”
But as we noted earlier, creating entitlements for people who have probably made false charges is a terrible idea, since false complaints can not only make life miserable for the victims of such false allegations, but also cause serious problems for the institution they work for or attend. Investigating a single false accusation typically costs a college thousands and thousands of dollars in fees for outside investigators (like law firms) or in lost employee man-hours, money that would be better spent providing students with a high-quality education (rather than teaching students the terrible lesson that false allegations pay).
Hans Bader is a senior attorney at the Competitive Enterprise Institute.