My colleague Geoffrey Stone, a well-known liberal legal commentaor and First Amendment scholar, has a very sensible piece in Huffington Post; some excerpts:
[T]he concern with campus sexual assault has begun to take on the characteristics of a panic in which government officials and school administrators have increasingly lost sight of other fundamental values that must shape the culture of institutions of higher learning....
[T]he Department of Education has declined to define precisely what it means by sexual assault. Clearly, it includes the crime of rape. But the meaning of sexual assault, at least as used in this context, can be extremely, and dangerously vague.
Fundamentally, it is bound up with such concepts as "consent" and "unwanted" sex. The problem is in defining how those concepts apply in this context. In many instances, especially where alcohol is involved, as it often is, extremely difficult questions arise about the meaning of "consent" and "unwanted." Is it measured by the subjective state of mind of the "complainant" or by the reasonable understanding of the "accused"? How are the participants, and the institutions, to know whether in any given interaction the accused crossed the line?....
The Department of Education has...sent strong signals, however, that colleges and universities must be tough on those who commit "sexual assault," however defined. The result is that academic institutions feel compelled to adopt very broad definitions of sexual assault for fear that if they get it "wrong" the Department will find them in violation of federal law and strip them of federal funds -- a penalty that strikes at the very heart of many colleges and universities.
To eliminate such overreaction on the part of academic institutions, the Department should set a clear -- and sensible -- standard for what counts as sexual assault. This standard should focus on the reasonable understanding of the accused rather than on the subjective understanding of the complainant. To impose serious discipline on students for committing sexual assault when they could not reasonably have understood in the circumstances that the sexual interaction was unwanted sets a standard of culpability that is both unfair to the accused and demeaning to the complainant....
[A] second issue concerns process....By what standard should the fact finder have to decide whether her story or his story is true, before expelling him?
According the Department of Education, in all such proceedings "the evidentiary standard that must be used" is "preponderance of the evidence," that is, whether it is "more likely than not" that he committed a sexual assault. In my judgment, that is the wrong standard. Indeed, many if not most colleges and universities have traditionally applied the "clear and convincing evidence" standard in such circumstances. The difference between these two standards is roughly the difference between being 51 percent confident that the student committed the sexual assault before expelling him and being 75 percent confident that the student committed the sexual assault before expelling him....
For a college or university to expel a student for sexual assault is a matter of grave consequence both for the institution and for the student. Such an expulsion will haunt the students for the rest of his days, especially in the world of the Internet. Indeed, it may well destroy his chosen career prospects. This is especially likely, for example, for law students.
Moreover, the procedures used in these disciplinary hearings do not come close to those employed in civil actions [which use a preponderance standard], which involve judges, juries, rules of evidence, lawyers, discovery, and a host of other procedural protections designed to enhance the reliability of the proceedings. Even at their best, college and university disciplinary proceedings are a far cry from civil actions in terms of fairness to the accused.
Thus, although the Department of Education may well be right that "proof beyond a reasonable doubt" is unnecessary in these circumstances because there is no risk of imprisonment or a formal criminal record, it is completely unfair, in my judgment, for a college or university to suspend or expel a student on the ground that he committed a sexual assault if the institution is only 51 percent confident that he did so.
A number of philosophy professors are on what increasingly seems to me to be the wrong side of these issues; that is their right, but they should stop acting as though they occupy the moral high ground. They do not, and Prof. Stone's piece usefully explains why.
ADDENDUM: Readers who want to comment on the Stone piece can do so on Monday's "open thread."
Recent Comments