Polis: Campus Due Process Is Dispensable

Openly gay Rep. Gerald Polis (D-Colo.) is being applauded in progressive circles but rightly castigated by others for his position that “If there are 10 people who have been accused [of campus sexual assault], and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people” by expelling them.

As Robby Soave writes at Reason.com:

I could go into all the ways this idea is wrong and flies in the face of liberal Western notions about justice and fairness—whatever happened to innocent until proven guilty? Not equitable, alas—but it’s actually a downright reasonable position, considering what Polis advocated moments later. He said:

“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. Perhaps a likelihood standard…. If I was running a (private 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.”

Campus sexual assault, like any sexual assault, should be prosecuted and those found guilty punished. But as terrible as sexual assault is, it’s also terrible to be falsely accused, and that happens as well. Yet due process seems to be another of those once-liberal notions that progressives no longer find relevant.

Cue the witch hunts and the inquisitors.

Lookback: On Campus, Absence of Due Process Extended to Gays:

The charges here, however, involve a couple that dated for two years and, after the breakup, one accused the other of violations such as staring too much at him while he was undressed in the bathroom, and kissing him while he was asleep and thus unable to consent (did I mention this was a two-year relationship)?

The jilted student tried, unsuccessfully, to get his ex-boyfriend expelled. Under the Polis standard, he probably would have succeeded.

More. Instapundit Glenn Reynolds penned a USA Today op ed with the blurb: “Jared Polis’ idea to deprive college men of due process highlights toxic campus culture of discrimination against men.”

Furthermore. Via Instapundit and the Washington Examiner, which aren’t buying Polis’s claim, after the backlash, that he misspoke. More here.

25 Comments for “Polis: Campus Due Process Is Dispensable”

  1. posted by Doug on

    Change the subject from sexual assault to Muslim, black or hispanic and you have exactly the position advocated by most of the GOP. Once again it is only progressives that Stephen has a problem with.

  2. posted by Houndentenor on

    How about this:

    Felonies should only be handled by the criminal justice system, not by campus authorities. Schools can and should continue to deal with internal matters like cheating and plagiarism but any serious crime should be investigated and, if warranted, prosecuted by the local police and DA’s office.

    I agree that no one should be expelled based on an accusation. That accusation should be investigated by the proper authorities (note: NOT a school committee with its own agenda). Schools have a long history of sweeping accusations under the rug and shaming the accusers into leaving. Yes, there are also sometimes false accusations. All of that makes it even more important for such claims to be properly investigated and for proper procedures to be followed. I hope we can all agree that people should not be punished for things they didn’t do, nor should rapists get away with violent crimes because the university wants to avoid the publicity.

  3. posted by Tom Scharbach on

    The idea that colleges and universities exercise internal legal jurisdiction over students goes back several hundred years to the days when clergy were subject only to the authority of the church, and colleges and universities were run by churches. The tradition survived in the form of “loco parentis”, in which college and university officials were viewed as standing in the role of parent.

    Both traditions have long since outlived their usefulness, and are hopelessly outdated.

    Colleges and universities should be required to turn over any and all criminal matters to the police, who are trained to handle criminal accusations, and required to do so with constitutional protections in place.

    The argument, made by some, that college and university students enter into a contract with a college and university, and that the contract trumps constitutional protections with respect to criminal accusations, is wrong. An accused can waive his or her constitutional rights (e.g. the right to remain silent), but that can be done if and only if the waiver is an informed waiver. A private contract between student and college or university does not meet muster.

    Having said that, private colleges and universities have, and should continue to have, broad latitude in determining who can, and who cannot be and remain a student. I have no problem with private colleges and universities creating rules relating to student behavior that ban legal behavior that the institution deems damaging to its educational mission, and have no problem with private colleges and universities suspending and/or expelling students for any reason that is covered by the admission contract, whether or not such reason makes sense or violates our sense of justice and fair play. Without such freedom, private colleges and universities, particularly colleges and universities affiliated with religious institutions, would find it impossible to carry out their educational mission.

    Not so, though, for public universities. Public universities are an extension of the government, and should be bound by all applicable rules/regulations/protections limiting the power of government in general.

    • posted by Houndentenor on

      Agreed, except that private colleges, including religious ones, should be bound at least to a consistent application of their own policies. I got a sense, even back in college that the rules did not apply to everyone, and that’s just wrong.

      Also, even as a Freshman I found the idea of “loco parentis” to be bullshit. I was 18 and therefore an adult. What’s more I had parents who were perfectly capable of filling that role. I did not need the university to do it for them, even though they were a couple of hours away.

      • posted by tom jefferson 3rd on

        I think that most students, faculty and staff on a (public university) disiplinary comm dont fully appreciate how due process works or the rules of criminal procedure, evidence and the like.

        So when they are left to decide what to do with a student accused of a felony, they simply dont have the training and experience that the Constitution and courts require.

    • posted by tom jefferson 3rd on

      I would generally agree.

      Congressional hearings have been know for politicans making statesments that are unsound, but theatrical.

      If you look at what a number of politicians said in the 1990s (hearings were held) about video games, well, they are pretty funny. Not too much actual facts, but lots of well timed shock and awe.

  4. posted by Jorge on

    Schools have a long history of sweeping accusations under the rug and shaming the accusers into leaving.

    I think that’s exactly why there should be a separate school-based judicial process outside the criminal justice system. Proof beyond a reasonable doubt is a high and trying standard for an accuser to meet.

    There’s no reason to lower the standard to below 50% in the hypothetical the congressman described. Just convict all of them on a conspiracy accusation.

    But as people come to understand their rights more and more, they become more effective at stymieing investigations and skating on their crimes and those of their friends. That is why there is always this temptation to lower standards and burdens of proof.

    I’d be more sympathetic if the accusation were something like gang involvement, something where you can make a blanket judgement that the only course of action is exclusion and a scarlet letter. But something like sexual misconduct is something that sometimes occurs as a result of a more minor misjudgment. There should be some hope of rehabilitation in cases like that. So we should not lower the standards any more than the Obama administration is already demanding (geez, give an inch and they demand a foot).

    • posted by Houndentenor on

      I have no problem with schools upholding a higher standard than the law requires. Cheating on an exam may not be a felony, but it is a serious ethical problem that schools should not take lightly. That’s just one example. Certain kinds of sexual harassment are the same. Perhaps they are not criminal offenses but if the school has set a policy then they should enforce it. BUT, there needs to be a process by which people can defend themselves against accusations that may not be entirely true.

  5. posted by Dale of the Desert on

    What is the point of this posting? Why did Stephen write it? And most importantly, where are these “progressive circles” that are applauding Polis’ remarks? His comments were made at a House Subcommittee hearing, not some “progressive circle” rally. And his remarks were reported to have received applause, but it wasn’t specified whether it was a smattering a polite applause from a few people in the rear, or a thundering standing ovation of a multitude. In either case, I’m having trouble pulling together signs of enthusiastic support from “progressive circles.”

    • posted by Houndentenor on

      Homocons are obviously desperate to avoid the anti-gay hate-fest happening in the GOP presidential campaigns right now.

    • posted by Tom Scharbach on

      Homocons are obviously desperate to avoid the anti-gay hate-fest happening in the GOP presidential campaigns right now.

      Not surprisingly, given last night’s debates, in which both Bush and Christie backtracked from their earlier “public officials should obey the law and do their job” position, now endorsing religious exemptions for public officials, Kim Davis in particular. Bush waffled as usual, mucking up the issue as much as possible to maintain general election cycle flexibility/deniability, but Christie came right out and said “if the law needs to be changed in the state of Kentucky, which is what she’s advocating, it should be changed”.

      Bombast aside, how do these two differ from Cruz, Huckabee, Jindal and Santorum? The conservative Christian crackpots have carried the day.

  6. posted by Houndentenor on

    Meanwhile, this happened…


    • posted by Aubrey Haltom on

      Houndentenor, did you read the article? I find it, well, interesting that people like Fluharty (the resigning Exec Dir) can parse their political and personal lives to the extent that they do.

      He came out as gay in 2013, expressing the view that marriage equality was very important to him as a gay man.
      But in 2012, he worked for and tried to help Gingrich get elected. A man who would has hypocritically opposed marriage equality from the start.
      Fluharty didn’t address the discrepancy in the ‘coming-out’ interview. Nor anywhere else, as far as I can tell.

    • posted by Jorge on

      Humph. Robert Traynham he’s not.

    • posted by Tom Scharbach on

      Humph. Robert Traynham he’s not.

      I (sometimes, anyway) enjoy your wry sense of humor.

      Traynham (who came out in a 2005 interview with the website PageoneQ) was Santorum’s Director of Communications, responsible for the Senator’s messaging during Santorum’s years in the Senate, the height of Santorum’s anti-gay diatribes, including the infamous “man on dog” insanity in 2003:

      “In every society, the definition of marriage has not ever to my knowledge included homosexuality. That’s not to pick on homosexuality. It’s not, you know, man on child, man on dog, or whatever the case may be.”

      And yet, in a 2012 interview with the Grio, “Traynham said he never heard Santorum voice an anti-gay or bigoted comment when he worked for the Senator between 1997 and 2007.”

      You’re right, though. John Fluharty is no Robert Traynham. Traynham goes well beyond “parsing”. Traynham’s on the edge of cognitive disassociation.

      • posted by Aubrey Haltom on

        Ha! Ha! Yes. True that…

      • posted by tom Jefferson 3rd on

        He probably told himself that the U.S. Senator was making a principled case against the Constitutional right to privacy and not actually saying that gay sex should remain illegal..

      • posted by Houndentenor on

        Typical homocon cognitive dissonance. I just can’t feel sorry for them any more. They choose to ignore the obvious and have no problem spewing right wing talking points, even the homophobic ones. His removal was inevitable. Everyone else saw this coming.

      • posted by Jorge on

        Haters gonna hate.

      • posted by Tom Scharbach on

        Haters gonna hate.

        I am not suggesting that Rick Santorum is a “hater”, if that is an issue for you, Jorge.

        To the contrary. Santorum’s views reflect the mainstream Republican view of the period during which he was a Senator (1997-2007).

        Using George Bush as a benchmark: (1) both Bush and Santorum thought that Lawrence was wrongly decided, and that sodomy should be criminalized; (2) both Bush and Santorum opposed adoption by gay/lesbian couples; (3) both argued that equal rights for gays and lesbians would weaken the family and the nation; (4) both opposed marriage equality; (5) both supported a federal constitutional anti-marriage amendment; (6) both argued that allowing gays and lesbians to marry would threaten straight marriage; and (7) both opposed ENDA and other laws banning discrimiantion against gays and lesbians.

        Santorum was more colorful in his language than Bush, but his views were straight up, mainstream Republican. So were Newt Gingrich’s, who Fluharty worked so hard to elect President. Almost all Republicans of the period leveraged fear and loathing of gays and lesbians for political advantage during that period. Many (most?) still do.

        I am not concerned with Santorum’s political or social views. Republicans will be Republicans. What puzzles me is how gay men like Traynham, Mehlman, Fluharty and the rest of the homocons could stomach pushing their agenda, or be unaware that the agenda they were pushing was anti-gay.

        • posted by Doug on

          “What puzzles me is how gay men like Traynham, Mehlman, Fluharty and the rest of the homocons could stomach pushing their agenda, or be unaware that the agenda they were pushing was anti-gay.”

          It’s called internalized homophobia. In other words self hatred with a heaping dose of denial.

  7. posted by tom Jefferson 3rd on

    Yes, it is possible for a student to be falsely accused of rape. It is just very rare and the “witch hunt” tends to be directed at the victims.

    It does seem absurd that violent felonies would be handled by a faculty/student committee.

    I don’t think it’s some sinister left-wing conspiracy. I suspect it a long standing tradition with private (often faith based) University’s , which evolved into what it is now.

    • posted by Houndentenor on

      I know that typing these words will make me sound terribly naive, but I’m doing it anyway.

      I still believe the truth matters.

      There. I do. I still think the point of an investigation is to find out what really happened, to the extent that it is possible when there are competing agendas. And then the chips should fall where they may once we know that truth. That’s why an organization with an agenda (in the case of a university, to hide the fact that rape occurs on their campus or to protect a star athlete or the child of a major donor) should not be doing the investigation.

      All that said, cases of false accusations of rape are far rarer than cases where the rapist isn’t prosecuted or is just never caught. Neither should be tolerated. It’s odd that some people begin every discussion of rape with the assumption that most of the accused rapists are innocent. That’s rarely the case. They SHOULD be subject to due process because that’s the best chance we have of only punishing those who are guilty (not a perfect system admittedly, but until we come up with something else). And when I read these things I understand why so many of my young women friends are so angry about this. Because ALL of them know someone who was raped or sexually assaulted. All of them. And they know how easily authorities dismiss many accusations. So the idea that this is all one sided against men is absurd. Yes, occasionally someone is railroaded. Far more often women report crimes and nothing happens. In fact sometimes women are run off campus for daring to make the accusation.

  8. posted by Tom Jefferson III on

    Most of time rape is an act of violence against women, by a man. This does not mean that men cannot be the victims of rape (or is less horrible), it just is rarer and tends to involve certain differences in comparison to sexual violence against women.

    With few exceptions, campus disciplinary and other committees (I have served on a few), are not run by a bunch of lawyers, judges and police officers. So, when they start to deal with a serious criminal matter, sometimes you get a “as a seen on TV” idea of how the due process and criminal justice system works.

    It is less of a political or partisan issue (i.e. “big, bad left-wing liberals are oppressing poor, oppressed men”), and more the simple fact that the people on the committee are not lawyers or judges or professionally trained police officers.

    Now if the Congressman was referring to a private (versus a public) University, then that may be relevant in terms of due process law. Congressional hearings are oftentimes fun to watch on C-SPAN, when you know more about the nuance and details of an issue then the politicians (or their staff).

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