@dstark, on what basis do you have faith that the accused wins in a 50/50 case IRL? I’m not saying you’re wrong. I just think that we haven’t really seen any data on the issue.
I continue to think that a big part of the problem is the expansion of the definition of “sexual assault.”
Hunt, Those are good questions.
UVA didn’t expel anybody. I think that meets the reasonable doubt level. 
I am not sure the standard has to be lowered at UVA to get more expulsions. UVA just has to expel people who did the crime.
Lowering the standard will lead to more convictions. Lowering the standard does not have to lead to harsher punishments for those convictions.
In the OXY case, the guy was kicked out of the school. OXY could have suspended the guy.
If the above is true and you are right, the preponderance of evidence standard may not be that onerous.
This is the question we read in various forms? Does punishment deter crime? What do you think?
There was a former poster who sometimes took the position that an unduly harsh rule or procedure was OK because the actual decisionmakers would smooth out the problems and give fair results. Personally, I don’t like relying on that idea–I prefer fair and sensible procedures in the first place.
I think I could support a system in which the accuser can choose different procedures–one would be a disciplinary procedure with the potential for expulsion and other serious punishments, which would be similar to a criminal proceeding in some respects, and would include protections for the accused including a heightened standard of proof (at least clear and convincing). The other would be a procedure that would be more like a civil dispute resolution approach in which expulsion isn’t a possible result–rather, things like counseling, stay-away orders, etc., would be involved, and a preponderance of the evidence standard would be applied. I think there are some systems like that, but I’m not sure the OCR investigations will allow them to continue.
“Should there be different punishments depending on how sure the judge is about the case?”
This can be how it works in the real world, and it works in reverse, too. At “single sanction” schools like UVA, where in theory expulsion is the only punishment available, professors may choose not to report cheating that they think doesn’t rise to the level of justifying an expulsion. Frankly, that is what I would do were I a professor and I saw a panicked premed glance at someone else’s test.
Consolation, I don’t know for sure. The accused are supposed to win the 50/50 cases. I don’t think the people making the decisions are diabolical.
I am reading cases and the guys are winning. I look at the Hobart and Smith case, the FSU case…I don’t think these cases are 50/50 and the guys are winnng. Then you have cases like the Columbia case which is 50/50 and the guy wins. Those are just examples.
I read stuff like UVA never expelled anybody. A large amount of schools report there weren’t any sexual assaults on campus. Victims are complaining they aren’t being heard. Most cases never get to a tribunal. Most cases never go anywhere. The accused wins before a case gets going.
There are cases where guys lose. The Michigan case. There is a Duke case ongoing. That may be reversed. When I say the guys win the 50/50 cases, I don’t mean every single case. 
Hunt, ok.
Hanna, I like your post.
I posted there is a proposed law on handling sexual assault on campus. There is some bipartisan support. These issues are far from being decided.
@momrath, I know of no college that has counseling/advocacy types involved in adjudicating student conduct cases of any kind. (I mean, aside from acting as witnesses if they have direct knowledge, of course, or people who used to be in counseling but have moved over to the adjudication side of administration at some point, but that’s not what I think you were after.) There may be some out there, but I’d honestly be rather shocked to find such setups anywhere these days.
DFB – you need to read the critiques that have come out of the law faculties at Harvard, Yale and Penn. This from HLS:
“The lodging of the functions of investigation, prosecution, fact-finding, and appellate review in one office, and the fact that that office is itself a Title IX compliance office rather than an entity that could be considered structurally impartial.”
One of the biggest problems (way more significant than the 50.1% proof standard that this board is fascinated with) is the fact that in many cases the campus sex assault office is severely conflicted.
Poor Dean Eramo at UVA is the poster child for this. Simultaneously she’s supposed to be victim counsellor, incident investigator, prosecutor, judge and jury. While also watching out for UVA’s interests. Of course everyone thinks she does a bad job. It is impossible to do otherwise.
We’re maybe talking past each other, then—you’re focused on the administrative structure (“housed in one office”), and I’m looking at the individuals involved in the process.
I wonder if there would be a role for a cadre of trained adjudicators–retired judges, maybe–who could go hear these cases at multiple colleges.
“I know of no college that has counseling/advocacy types involved in adjudicating student conduct cases of any kind.”
Harvard’s discipline structure (the Ad Board) has this problem. An upperclassman’s resident dean is generally their advocate, supervising letters of recommendation, giving advice about majors, etc. But they also sit as a voting member on the Ad Board when their student gets in trouble. For twenty years, going back to my time as a tour guide, this has been my first answer when people ask me what I’d change about Harvard.
Harvard still does that?!?
Dang, I’d thought they’d changed things around—and it’s not like there hasn’t been pressure on them to do so for a good while.
So, yeah—I retract a good bit of what I’ve said recently, @momrath and @northwesty—it appears I’d been misinformed about the pace with which student conduct review has been going through restructuring nationally.
I really hope my info is out of date. But last time I talked to people there about it, it was still true.
Hunt and others have invoked the horror of a flood of accused students being found guilty of sexual assault when the entire evidence against them was an accusation, unsupported by any other evidence: medical, physical, witness testimony, anything. I would be deeply concerned if that flood were occurring. But I haven’t seen evidence of a flood, or even a trickle. In fact, I haven’t seen a drop of evidence.
Those of you who say that students are being convicted on the basis of bare accusations with no supporting evidence, could you give me three examples of cases where that has happened?
It seems to me that what’s true about a he said/she said case with no supporting evidence is:
(1) The accused person will not be found responsible, because a bare assertion isn’t enough evidence;
(2) The accused person should not be found responsible, because a bare assertion isn’t enough evidence;
(3) He probably did it.
If someone can convince me that the alleged parade of horribles is actually occurring, then I will start to get concerned about it.
“Dang, I’d thought they’d changed things around—and it’s not like there hasn’t been pressure on them to do so for a good while.”
This obvious conflict of interest was also a big part of the Rolling Stone/UVA story. Google up UVA Dean Eramo who was villified in the early aftermath of the RS article for the multiple roles she had to play. Even though she had the public and unwavering support of UVA “victim” Jackie.
Fairness is a much bigger thing than just the evidence standard (which is less important imo than what most on this board think).
It is about right to counsel (even if you can’t afford it), discovery, rules of evidence, opportunity for cross-examination, separation of the roles of detective, prosecutor, judge, jury and appellate body. Basically, all that stuff the real criminal justice system has.
As Fang continues to point out (correctly) there are lots of fair court proceedings that operate under the 50.1% standard. Those proceedings are still fair because they have all of that other stuff courts have.
Ultimately, my opinion is that this issue fundamentally is not going to be solved by reforming/revising adjudication procedures. This isn’t a litigation process problem, and therefore it won’t be solved by changes to the college litigation process. Although the folks at OCR (career litigators fyi) seem to think so.
Cardinal Fang, I’m concerned about fair process, whether there will be a flood of cases or not.
When you are utilizing the preponderance of the evidence, a bare assertion is enough evidence, if the person making the assertion is deemed to be credible. And as (3) above suggests, you, at least, would enter the proceeding already believing that the accused is likely guilty–satisfying the preponderance of the evidence test. Perhaps you are suggesting that tribunals wouldn’t actually follow the rules in he said/she cases, but I don’t find that very reassuring.
Just to clarify this, oral testimony is evidence, and if a jury or other factfinder chooses to believe it (and to disbelieve the conflicting testimony), it is entitled to do so. Indeed, this can cause issues even where the standard is beyond a reasonable doubt. When I was a law clerk, the judge I worked for reviewed a case in which the only evidence that a defendant committed a robbery was the testimony of the store clerk, who identified the defendant as the robber when he came into the store to shop some time after the robbery–and his appearance didn’t fully match the description the clerk gave the police at the time of the robbery. Result? Conviction upheld, because the jury was entitled to believe the testimony. I tried really hard to find some way to send that case back, but the precedents didn’t allow it.
Well, wait—in the case of UVa, they’ve restructured their process (as many universities have in the past 5 years, often in the past 2–3), but in any event, just because the Dean of Students is the one nominally in charge of both counseling and adjudication doesn’t mean that the DoS is actually doing the day-to-day running of both sides. This is what I meant when I said that I was focusing on the individuals who were involved, not the overall corporate structure—I mean, it actually makes sense for both counseling and adjudication to fall under the DoS, as long as the DoS isn’t the one actually doing both things. Even in the UVa case, I don’t think anyone was claiming that Eramo (who isn’t Dean of Students, she’s the associate dean in charge of sexual assault adjudication, a big difference) was wearing both hats at once—the issues with her and her handling of things have tended, IMO reasonably, to run along different lines than that.
“Those of you who say that students are being convicted on the basis of bare accusations with no supporting evidence, could you give me three examples of cases where that has happened?”
I’ve worked on two such cases this year. Of course, I don’t and will never know for sure if they were guilty, but they were found responsible and expelled without any evidence of assault besides he said/she said. (There was other evidence, like text messages, but nothing that supported assault besides the accuser’s version of events.)
Many hats worn simultaneously by Dean Eramo, which this victim complains about.