I don’t much care what standard Stanford University uses to decide whether to expel students accused of sexual assault. The issue doesn’t get my blood pumping. If Stanford chooses “a preponderance of the evidence” and other schools follow a higher standard (“clear and convincing evidence,” or even “beyond a reasonable doubt”), potential Stanford students are free to decide whether they want to attend a Hysterifascist People’s Utopia, and go somewhere more congenial.
But according to the U.S. Government Stanford can’t choose any other standard, and neither can any other college that accepts federal Title IX money. The Department of Education’s “Dear Colleague Letter” says that, under Title IX, “a school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.” Sex discrimination, says the DOE, includes sexual violence.*
So any college receiving federal money has to use the preponderance-of-the-evidence standard to resolve a complaint of sexual violence.
If a private college decided to lower the standard for proof of a sexual-assault allegation, the U.S. Constitution would not be implicated. When the federal government tells private colleges how to handle such allegations, I think the Constitution kicks in: if the Government tells private colleges to deprive students of their places without due process and the colleges do so, they are state actors. Due process doesn’t require proof beyond a reasonable doubt except in a criminal case, but expulsion from college might be high enough stakes to trigger a higher standard, under the Due Process Clause, than a mere preponderance of the evidence.
So at the behest of the Department of Education Stanford, by presidential fiat, recently lowered the standard of proof in disciplinary cases from “beyond a reasonable doubt” to “by a preponderance of the evidence.” But not in all disciplinary cases, of course; just in those that involve allegations of sexual misconduct. (In fact, the school changed the standard mid-trial. PS “persuasive and logical” people are abusers. Still think “hysterifascist” is overblown?)
Fortunately for Stanford’s students, Stanford’s student association, the ASSU, has a constitution that guarantees an accused student the right “to be considered innocent until proven guilty beyond a reasonable doubt.”
Unfortunately, even more than the United States Constitution, the ASSU Constitution yields to the Government’s claimed expediency. Because, the government says, “our nation’s young students suffer from acts of sexual violence early and the likelihood that they will be assaulted by the time they graduate is significant,” the standard of proof for allegations of sexual assault must be reduced to “more likely than not.” Needs must. QED.
Stanford senior Viviana Arcia, “ASSU Chair of Women’s Issues,” lauds the lowering of the standard of proof in Op-Ed: Standard of Proof; and “would strongly encourage the incoming ASSU Executive and ASSU Senate to make the lowering of the ASSU Constitution’s standard of proof to ‘Preponderance of the Evidence’ a priority, to be effective as soon as possible,” but Ms. Arcia is demonstrably an ignoramus:
We also brought up the issue of how our high standard differed from those used in domestic violence courts. In these cases, courts use a standard of “Preponderance of the Evidence,” or about a 51 percent chance that the assault or abuse occurred. And in these cases, people are often at risk of prison sentences. However, at Stanford, the most that can happen is expulsion from the University, not nearly the same punishment. As such, our former system of “Beyond a Reasonable Doubt” was wholly inappropriate when considering how actual criminal courts prosecute sexual assault and relationship abuse.
The only way to amend the sham constitution is with a two-thirds vote of the student body. I’ll try to follow that vote—most Stanford students may not be ignoramuses; they might, like my readers, know that the U.S. Constitution requires proof beyond a reasonable doubt in any criminal case, even if the case involves domestic violence allegations, so that even “domestic violence courts” use that standard if they are “actual criminal courts.”
Stanford Law grad Daniel Bartow gets it. In his Letter to the Editor: Burden of Proof he criticizes the Stanford president’s decision:
That the University would adopt a standard typically used when the only stakes are monetary to adjudicate whether someone should be educated within its walls speaks volumes about the value the University places on the education it provides.
The low standard bothers me too. Smart people work hard to get into Stanford; they invest lots of money, and I imagine that many of them work hard, once they are there. Losing all of that shouldn’t be as simple as coming in second in a swearing match—especially when the swearing match follows rules like, “an abuser will feel victimized while the survivor will feel confused.”
But what bothers me more than the lowered standard of proof is the loss of the presumption of innocence. I’m not talking about the de facto presumption of guilt when a woman says a crime has been committed and a man says it hasn’t and there is no other evidence. I’m talking about the presumption of guilt that must be indulged before a different set of rules can be applied to someone charged with sexual assault than to the same person charged with a financial (for example) crime.
Title IX says that no person may be denied the benefits of education because of his or her sex. The reasoning behind the lowered standard of proof is, as near as I can figure, this:
- When a person is sexually assaulted by a fellow student and the assailant is not punished, the victim is denied the benefits of education;
- Most sexual-assault victims are assaulted because they are women;
- Therefore when a person is sexually assaulted by a fellow student and the assailant is not punished, the victim is denied the benefits of education because of her sex.
The following is equally true:
- When a person is falsely accused of and disciplined for sexual assault, the victim is denied the beneifts of education;
- Most people falsely accused of and disciplined for sexual assault are accused because they are men;
- Therefore when a person is falsely accused of and disciplined for sexual assault, he is denied the benefits of education because of his sex.
What follows each chain of reasoning is the same: …so to comply with Title IX, we must do something.
But the two problems suggest opposite solutions: the first, that disciplinary convictions be made easier; the second, that they be made more difficult. Any change to the system that improves the likelihood of punishment for sexual assault also increases the likelihood of false conviction (see, e.g., lowering the standard of proof). So either solution violates Title IX.
So what’s a conscientious (by which I mean, “not bound by postmodern orthodoxy”) school to do (aside from the obvious “call Jeff Fisher and get his opinion”)?
If we assume that a person accused of sexual assault didn’t do it, it makes sense to keep the standard of proof high; if we assume that a person accused of sexual assault did it, it makes sense to lower the bar.** We could make our assumption dependent on the likelihood you assess of either condition, and adjust it based on the consequences,*** but what we are doing is choosing to either treat guilty people as though they are innocent, or treat innocent people as though they are guilty.
One of those is the American way, based on hundreds of years of common law. The other is not. Which is apparently why Peter McDonald thinks that the lowered standard of proof is a good thing. In Why Do You Hate Justice, Stanford? he writes:
the journey toward making a just society is a slow and messy process….
…For sexual assault victims that aren’t blonde-haired, blue-eyed, and still had their hymen in tact [sic], the system’s kind of set up against them. But none of that matters because “INNOCENT UNTIL PROVEN GUILTY. INNOCENT UNTIL PROVEN GUILTY.” I’m pretty sure the people who developed that concept never had to worry about being the victim of sexual assault. Even less likely had they thought about the difficulties of trying to bring such a case to court. Most writings and theories about law were just a bunch of old rich white dudes arguing over property, in a time when women were still considered property. That’s right, get ready kids cuz I’m about to drop it, our entire modern Western conception of justice is a product of phallogocentrism.
I don’t say this to fundamentally reject the justice system, but to remind Mr. Barton and the angry commenters below Arcia’s op-ed of the problems with treating any doctrine made by humans as infallible. We all love the Constitution and think it’s the most just document on the planet, but for the majority of the 19th century, the Constitution was used as the top defense for preserving slavery. Most people knew slavery was bad and even more wanted to get rid of it, but it was protected by the Constitution. The nation’s hands were tied. It had to keep slavery legal. The Constitution can’t be wrong, it’s the Constitution. It took 4 years of civil war before our nation could finally recognize that the Constitution was in fact wrong and thus needed to be changed (I’m pretty sure there are some Tea Party artards out there who have no problem with how this chapter of American history played out).
It’s the same principle here with the Standard of Proof. Thankfully, academia is always open to self-analysis and changing broad structures, like the Office of Judicial Affairs, even if it’s unpopular to do so. I mean, yeah, it may sound like you’re a freedom-hating angry feminist to attack the idea of proving guilt beyond a reasonable doubt, but William Lloyd Garrison was branded a lunatic America-hating insurrectionist when he advocated for the abolition of slavery and for full racial equality. Ultimately, if the system’s broken, you got to change it.
The old Standard of Proof was not working, it needed to be changed. If the new Standard of Proof bothers you, there’s an easy solution: don’t sexually assault people. Then you won’t have to deal with it.
There you have it: the beyond-a-reasonable-doubt standard was like slavery, because giving everyone the same protection is like treating giving some people less protection than others. And Peter McDonald is like William Lloyd Garrison. And if you don’t want to be falsely accused of sexually assaulting people, don’t sexually assault people. And the founders were all just arguing over property. And we’d be closer to a just society if the government could more easily punish people. And… and… and…
Is it Swiftian brilliance, or is it proof positive that stupid people, if they work hard, can get into Stanford too?
*Query: is same-sex sexual violence “sex discrimination”? What about sexual violence by someone who doesn’t prefer either sex?
**We could do both, so that the accuser whose allegation cannot be proven by a preponderance of the evidence gets disciplined for making a false charge. It makes as much sense as anything.
***This move by the DOE actually has people arguing about which is worse: being sexually assaulted or being expelled from college. The only thing saving the argument from utter perversity is the fact that the DOE’s definition of sexual assault includes “sex while intoxicated”; I’m going to go out on a limb here and say that getting expelled from college is generally worse than a drunken hookup.
(H/T Jennifer Abel.)