Clear and convincing is the middle ground standard, between preponderance and beyond a reasonable doubt. There are others, but these three are the most commonly used standards.
The argument that college disciplinary proceedings are civil proceedings and thus should use the standards used in civil trials is misplaced, for a couple of reasons (in my opinion). First, a proceeding in which a person is accused of rape and is subject to expulsion is not, in my mind, very similar to the typical civil trial. It’s a lot more like a criminal trial. Second, typically civil proceedings are usually means of resolving disputes between two parties. In such a case, each of the parties has its own representation, and the court is a neutral arbiter of the dispute. That’s not how disciplinary proceedings work–indeed, at many colleges, the prosecutor and the judge are essentially the same person. That’s not really like a civil proceeding.
Is it correct that even when an awful mistake is made and an innocent expelled, he will have avenues to pursue to clear his name? I understand the damage is in many ways irremediable and am not arguing, and will not argue, that point.
Well, if I were the lawgiver, I’d make a pretty big distinction between suspension and expulsion. Indeed, suspension might be a “civil” remedy, because you might use it to keep the wrongdoer away from the accuser, if you think the main issue is the conflict between the two of them. You might do this for sexual conflicts, but you might use it for other things, such as bullying, or fighting–again, if you think the main problem is between these two people. Imagine (for example), that a guy is stalking and bothering his former girlfriend-you might think the proper solution is to suspend him for as long as she’s going to be there. You are separating them, but the one with the most responsibility for the problem is the one who has to stay away.
Expulsion, in my mind, is different. Expulsion is saying that this person needs to be removed from the entire college community, either because he poses a broad danger, or because his crime is bad enough to be considered a crime against society (i.e., like a crime). But this is a serious matter, and should only be done if either (1) there have been criminal law-like procedural protections or (2) there have been multiple violations.
Let’s take the loud music guy. If the person next door complains, the first time around you will try to mediate. Maybe it’s just a problem between these two guys. The second time around, you might make the loud music guy move to a remote dorm room. The third time, you might suspend him. If he comes back and does it again, you expel him. That’s because he’s shown that he can’t function properly in the college environment.
Are there offenses that are so bad that a person should be expelled for a first offense? Certainly. And some of these–like serious plagiarism–might not even be against the law. But what I’m saying is that if there is an offense that is so serious that a person should be expelled for a first offense, then you need strong safeguards to prevent you from punishing innocent people.
absolutely! I am in the midst of emails with a pretty high priced lawyer about estate issues. People reading my posts here might be surprised by what terse emails I am capable of writing.
Hunt, I think it’s the digitalcommons/BC link that states OCR said preponderance because it is the standard used in civil rights cases. Not civil trials, per se. And apologies if this link was provided earlier.
I’m not comfortable with the notion to “let 10 guilty men go free rather than convict 1 innocent man.” No formed opinion on that. But I do think, repeating myself, that if we’re so worried about any one (or many) “innocent” accuseds getting expelled (or suspended,) we should try to find the overall numbers for how many ARE actually getting expelled.
OCR was hiding the ball when it used the term “civil rights cases.” Federal civil rights cases are litigated in federal courts. Plus, the vast majority of “civil rights cases” are not adjudications of allegations of rape, with individual punishment resulting to the accused person.
Personally, I’m very comfortable with this notion, except I’m not sure that 10 is a big enough number.
It will be interesting to see what happens if a federal court ever has the occasion to rule on whether “preponderance of the evidence” is the right standard to use in such cases. I think it would only come up in a case involving a public university, though, unless a private university wanted to resist OCR’s requirements.
alh - Thought this was an amusing commentary regarding your comment. However, I strongly disagree with the apocryphal Chinese professor (though 99:1 might be extreme). The fact that falsely imprisoning an innocent man is many times worse than letting a guilty one go free is ingrained in the the western tradition. Part of it is that in one case we are talking about the inevitable crimes committed by one person against another; in the other we are talking about possibly mis-using the the power of the state and the justice system that acts on behalf of all of us. I’d say the same logic applies as to why many people think a murder (not a killing) committed by the police in their official capacity is somehow worse than a murder committed by a civilian.
I think the punishment matters, too. I wouldn’t be too upset to learn that 1 in 10 parking tickets was unfairly enforced. But I’m not willing to execute anybody if there is an appreciable risk that even one innocent person would be executed. Obviously, expelling somebody from college for rape is somewhere in between.
Everyone here seems to be coming down to about this standard of proof for expulsion, 3:1 to 4:1, or to put it in probabilities, 75% to 80%. We seem to have an agreement. Yay!
Also, does anyone disagree with this standard from northwesty, for cases where expulsion is on the table: counsel provided to all, keeping a record, right to cross-examination, an independent and experienced judge, appeal rights, discovery?
4291- I'm not willing to execute anyone, partly, but not entirely, because of the risk of unjust convictions.
In the case of these expulsions, I am most concerned with changing the status quo as quickly as possible. I hate the idea of expelling an innocent, but am not sure how we avoid this is if we want to change campus culture. Overall, I favor education to change behaviors rather than fear of retribution. I like to think the point of putting people in prison is to protect the population, not punishment or deterrence. It seems to me to be a much more effective long term solution. However, the discussion is now about Title IX and so I’m shutting up.
If one of my kids is the accused or the accuser, there is going to be legal counsel, even if not officially allowed. We are going to be consulting the very best attorneys, in this area of law, I can locate. The fact I can do so points out just some of the inequities going on here imho.
I would add to Hunt’s post that generally civil trials result in punitive damages that are monetary in nature. Taking away someone’s ability to obtain a college education or pursue a career they are interested in are perhaps monetary but they are more akin to putting someone in jail. I don’t think colleges have the right to do this on a wing and prayer 1% and especially when the process is not aligned with people’s civil rights. In a case or two I was reading that are pending in the courts right now, the college investigator “picked and chose” what evidence to share during the hearing. That is so wrong on so many levels. Both sides should have the ability to present evident that supports their position…always and whomever is making the judgement should have access to all the documentation and evidence, not filtered by another person. Plus there are many other points int he various suit where due process and civil rights were ignored either intentionally or unintentionally by the colleges.
Alh Almost all the current settled and pending trials are by people that are trying to clear their records in essence. I would be hugely surprised if the trials that ended up with the college settling out of court and compensating the student suing didn’t include a large award (some of them are public and they are large awards) plus a cleansing of the record. Some of the suits have been turned back because and some have upheld college actions or lower court decisions. I’ve only found one lawsuit that was a suit by a woman and is completed - the claimant alleging she was unfairly treated and that one also was settled out of court although the settlement was relatively small - $18,000 I think. There are several civil suits (by aggrieved complainants) that are recently filed but not yet decided including the woman in Florida connected to the football player case.
I’d like to educate people too. Let’s consider the Stanford rape case we talked about yesterday, where the young woman was sharing a bed with her former boyfriend and she woke up with him having intercourse with her. Because I know of many cases where young people, and even people my age, share beds while traveling without any expectation of sexual consent, I believe that she did not intend or consent to sex. I don’t think this is a case of regret-- I believe she never consented. But I also believe he wrongly thought she consented.
And here’s where the education comes in. He shouldn’t have assumed she consented; he should have woken her up and asked her. He needs to be damn sure. He should know that being asleep next to him does not constitute consent. I assume that most guys don’t want to rape women, and they certainly don’t want to be suspended from college, so they ought to be educable on this: Be sure that your partner consents. Don’t assume she consents.
Suing tells me nothing past, well suing.
The link is a fascinating read- see what it says about due process.
But it needs attentive reading.
In part:
“Indeed, the Supreme Court has indicated that the clear and convincing evidence standard is intended for those circumstances in which particularly important rights are at stake, beyond the mere financial loss associated with the typical civil lawsuit. College students confronting disciplinary action may indeed face more than mere financial loss because their reputation may also be harmed. Yet the Supreme Court has typically reserved the clear and convincing evidence standard for cases in which fundamental liberty interests are foreclosed…As compared to permanent civil commitment or the irrevocable termination of one’s parental rights, the reputational interest is not quite so fundamental. Indeed, the Supreme Court has held that a state’s deprivation of an individual’s interest in reputation alone is not sufficient even to require due process protections unless a property interest is also in jeopardy.”
