During a House Education and Workforce Committee hearing, Democratic Congressman Jared Polis said that even if a whopping 80% of accused campus rapists are innocent, it was still better to kick them all out of school.
“I mean, we’re talking about a private institution,” he said. “If I was running one, I might say, ‘Well you know even if there’s a 20-30% chance that this happened, I would want to remove this individual.”
Freedom for Individual Rights in Education policy director Joseph Cohn responded by telling Polis that the sort of standard he was discussing would be highly unlikely to pass the due process requirements that public universities must legally abide by.
“It seems like we ought to provide more of a legal framework then that allows a reasonable likelihood standard or preponderance of evidence standard,” the Colorado Democrat responded. “If there’s ten 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 ten people.”
“We’re not talking about depriving them of life and liberty,” he laughed. “We’re talking about them transferred to another university.” That line earned him a smatter of applause.
“Let’s be clear about this,” Cohn said angrily. “That is not what we’re talking about.” But Polis cut him off and began questioning another witness.
I emailed Polis some follow-up questions, and he graciously answered them.
“We aren’t talking about depriving someone of their liberty here, we’re talking about the ability of an institution to decide who can pay them to enroll in their courses,” he wrote in an email to Reason. “I associate “due process” with a conviction of criminal penalty; what affirmative right do I have to pay a university and make them deliver courses to me? They deny students the ability to enroll for all sorts of reasons.”
But what if Polis’s own son was among a pool of students accused of sexual assault? Would Polis really want his student expelled under such a jarringly low standard?
“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.
If a university were to implement a ‘reasonable likelihood’ standard, it is important that they give the student the ability to withdraw so that their record isn’t tainted, nor should a mere reasonable likelihood standard hurt their prospects elsewhere.”
I then asserted that this arrangement cedes way, way, way too much power to accusers (yes, I wrote way three times):
“I think these matters should be up to Universities to decide,” he replied. “University of Colorado (CU) has an elected board of Regents. They should decide if they want to have a reasonable likelihood or preponderance of the evidence standard. If a University errs too far on the side of giving ‘way, way, way too much power to accusers’ then that 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.”
These are the unique kind of statements that can make almost everyone unhappy. If you think colleges are screwing up by not going after enough accused rapists, it’s not a good thing to have someone on your side talking about situation in which the accused is much more likely to be innocent than not. If you’re concerned about the effects of false accusations/ overreactions on campus and think that the Obama administration screwed up by mandating that colleges take an active role in something that should be left up to the prosecutors, a congressman saying that the likelihood that someone is innocent shouldn’t matter is a big problem.
I guess Congressman Polis should also agree that if there’s an 80 percent chance that an elected official accused of wrongdoing is innocent, the official should still be kicked out of office. What applies to young people seeking to improve their educations should certainly apply to politicians, right?