U.S. Rep. Jared Polis is getting some blowback on remarks he made at a hearing yesterday to the effect that college students accused of sexual assault may merit expulsion even if they’re not proved guilty.
The gay congressman from Colorado said that how a college deals with such accusations is different from the process in a criminal court, where a defendant may be convicted only if proved guilty beyond a reasonable doubt. “It certainly seems reasonable that a school for its own purposes might want to use a preponderance of evidence standard, or even a lower standard,” he said at a hearing on campus sexual assault prevention before the House Subcommittee on Higher Education and Workforce Training. “Perhaps a likelihood standard. … If I was running a [college] 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.”
After a witness at the hearing, Foundation for Individual Rights lawyer Joseph Cohn, said applying this standard would deprive students of constitutional due process rights, Polis responded, “It seems like we ought to provide more of a legal framework, then, that allows a reasonable likelihood standard or a preponderance of evidence standard. 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. We’re not talking about depriving them of life or liberty, we’re talking about them being transferred to another university, for crying out loud.”
Polis received applause at the hearing, but his remarks were later critiqued by libertarian-leaning scholars and journalists. “There are certain positions where indeed a whiff of suspicion might be enough to get someone removed,” wrote University of California, Los Angeles, law professor Eugene Volokh in The Washington Post. “I just hadn’t thought that being a college student would or should be one of them.
“And that’s especially so when the policy is defended on the grounds that the students will just go to another university,” Volokh continued. “The innocent expelled students would have their education badly disrupted and delayed. But the guilty students would, by hypothesis, just be at another university, where they’ll be able to attack their classmates (just a different set of classmates).”
Reason magazine asked Polis, the first openly gay father in Congress, if he would accept his son being expelled using such a low burden of proof. “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,” Polis replied. “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.”
Polis aide Kristin Lynch defended the congressman to Colorado newspapers, saying he was trying to make the point that safety should be college campuses’ top priority. “We’re happy to debate that with anyone and, to be frank, it’s disappointing that some are casually dismissing the basic premise that universities have the responsibility to go beyond criminal law in protecting students from sexual assault,” she told The Denver Post.
“There’s no stronger supporter for criminal due process than Jared — he’s spent six years in Congress advocating for fixing our broken drug laws and eliminating warrantless government searches and seizures,” Lynch added. “But this debate doesn’t occur in the arena of our criminal justice system. We’re talking about educational institutions and the safety of their campuses.”
Polis also responded to critics via Twitter, saying, “The standard for jail is and should remain beyond a reasonable doubt.”
Video of the hearing is below. It is more than two hours long, and Polis’s comments begin about an hour and 56 minutes in.