> No, that isn't sound. It's a criminal matter.

What distinguishes criminal matters from civil matters is the remedy sought. For example, OJ Simpson was acquitted of murder, applying criminal standards of proof. But he was found liable for wrongful death, and ordered to pay damages to the families, applying civil standards of proof.

Criminal law and civil law address different concerns, and the same conduct can raise both criminal and civil issues. Criminal law vindicates the government's interest in retribution, deterrence, or rehabilitating an offender. It does not generally address the victim's personal rights. Thus, the government can prosecute when the victim does not want to, and vice versa.

In a campus rape case there is a criminal aspect. But there is also a civil aspect. Students have a civil legal entitlement to pursue their education at schools receiving government funding free from harassment. Forcing a student to either continue attending classes with her rapist, or to leave the school is undoubtedly an infringement of that legal entitlement. That civil concern is wholly distinct from the criminal question of punishing the rapist.

> That's a nasty attribute of rape, and of various other crimes, not of colleges.

No, it's a distinction between civil and criminal aspects of a course of conduct.

Say you hit me with a car because you were driving drunk. There is a criminal aspect to the case (driving drunk is a crime), but there is also a civil aspect to the case (hitting someone with a car due to negligence is a tort giving rise to damages liability). You being erroneously acquitted of drunk driving under a criminal standard of proof doesn't hurt me. It's a moral loss, nothing more. But you being erroneously found not liable for negligent driving does hurt me. It means I'm forced to bear my medical costs, and have been erroneously denied compensation. The false negative (an wrongfully injured person being forced to bear their own medical costs) is just as bad as the false positive (a wrongfully accused person being forced to pay someone else's medical costs). So in the civil context, we do not apply the maxim of "better to let ten guilty men go free than convict one innocent man." Because it's not better to find 10 people not liable for drunk driving when they did so than to find one person liable for drunk driving when he did not. That results in 10 victims who are wrongfully denied compensation for their injuries. So that's not the standard we use. Instead, we weigh credibility under a "more likely than not standard."

The same is true for sexual assault and sexual harassment in the workplace or the school. Applying criminal standards of proof in that context, what you're saying is: "it's better to force 10 people to continue to attend classes/go to work with their harassers/rapists than to force 1 person to quit their job/school due to a false accusation." But that doesn't make any sense. In both cases (false positives and false negatives), someone is wrongfully denied educational opportunities. Saying that it's okay to have 10 of one outcome to avoid 1 of the other outcome basically just says that false accusations are somehow worse than sexual assault.

I disagree. The Title IX kangaroo courts were a disgrace to America. The accused had no right to an attorney, no right to remain silent, no right to face their accuser. They faced panels, of professors, college administrators, and naive fellow students, that were politically hostile to young men and that accepted allegations as necessarily true. Even in civil cases, where there is a preponderance standard, the burden of persuasion is on the plaintiff. Here, the burden was effectively on the defendant.

The consequences of a finding against the accused was ruinous to that person's career, and wasteful of their previous investment in their diploma. The consequences of the process itself, where the accused was subject to treatment that would grossly violate the Bill of Rights if it were the government's doing, was likely to prejudice any criminal prosecutions or real civil cases. And yet it was the government mandating this treatment.

This is different than an employment situation, where the at-will relationship is understood to govern and employees aren't generally seen as entitled to their job or any due process for ending it. Besides occupying a special place in American society as a necessary rite of passage, a university is charging students tens of thousands of dollars per year to attend. To expel a student without adequate due process, wasting their previous investment in their diploma, is unconscionable.

In many of these cases where students were expelled, the only evidence was the allegation itself. Is that the world you want to live in, where a young person's life can be ruined by a single malicious accusation?

I agree that the university processes are problematic. But the problem isn't the standard of proof. Universities were treating the Title IX process as something with criminal consequences, e.g. metting out punishments for the sexual assault itself. But if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?" Title IX proceedings should be directed at nothing more than adjudicating that issue. There should be no public show, there should be a sealed record, etc.

> Is that the world you want to live in, where a young person's life can be ruined by a single malicious accusation?

The alternative is the world we live in, where a different kind of malicious act (a sexual assault), can force a young person to leave school, or impair her education because she's forced to continue to attend classes with someone who attacked her. For too long, the reaction to accusations of sexual assault was to shift the cost of reduced educational and career opportunities to the victims. The victims were the ones shuffled to different classes, or to different groups in the company, or encouraged to leave the school/company entirely. That's not the world I want to live in either.

You can't ignore the cost of false negatives in order to avoid false positives. In the false positive scenario, a young person is forced to leave school due to a malicious act (a false accusation). In the false negative scenario, a young person is forced to leave school, or continue to go to school with someone who attacked her, due to a malicious act (a sexual assault). Both of those outcomes are bad, and if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).

Setting the burden of proof high to minimize false positives does not minimize the total social cost. Indeed, in a world where sexual assault is far less common than false accusations thereof, it's completely irrational to set the standard in a way that minimizes the cost from false positives at the expense of increasing the cost from false negatives.

> if you apply civil standards of proof, you can't mete out punishments. You can only adjudicate rights: "which one of us gets to stay?"

So you're fine with expelling a student (and likely ruining his life) on the basis of the findings of this 'court', so long as we don't admit that it's effectively a punishment?

> You can't ignore the cost of false negatives in order to avoid false positives.

So you disagree with Blackstone's "It is better that ten guilty persons escape than that one innocent suffer", I take it?

Erring on the side of 'not guilty' is a cornerstone of civilised justice systems. It isn't 'ignoring' anything.

> if you're being rational, you're trying to minimize SocialCost(false_positives) + SocialCost(false_negatives).

No. Again I refer you to Blackstone's formulation. Your utility function fails to capture the whole picture.

> Setting the burden of proof high to minimize false positives does not minimize the total social cost.

Yes it does. Blackstone was right.

What you are suggesting undermines the legitimacy of the justice system, which brings great costs. It also makes false accusations more likely, as well as more harmful.

It also assumes that a bad outcome is no worse for having been committed by the state, which is not so; it is far worse that an injustice be committed by the state than by ordinary citizens.

> I think you need to consider the second order effects. If we create a world where people have the power to destroy others with a mere accusation, that will change how people behave. It will create an atmosphere of vindictiveness, fear, and distrust.

But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.

> Having to deal with people who have wronged you, but who you can't prove have wronged you, is just an unfortunate reality of the world.

First, that's not true. We have both formal and informal ways of dealing with people who have wronged you, who you can't have convicted. For example, you can get a restraining order in Maryland using the same "preponderance of the evidence" standard Obama proposed for Title IX proceedings. You can sue someone for fraud or breach of contract for screwing you on a business deal, under the same preponderance standard. You can also use informal social mechanisms. Entrepreneurs live and die by their reputations, for example.

Second, this begs the question. I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment. My thesis is that we should not treat one of those bad outcomes as being better than the other. Your response boils down to "false positives are really bad, but false negatives are just something you have to deal with." But why?

> Give people incentives to do bad things, and they will do them.

Incentives are created in both directions. How many careers do you allow Harvey Weinstein to wreck in order to avoid erroneously wrecking the career of a film producer who is innocent? That's the calculus you refuse to grapple with.

>But Obama didn't propose that accusations alone should be able to get someone expelled. He proposed applying the same preponderance standard that applies, and works just fine, in civil litigation.

You can't reduce civil litigation to just the preponderance standard.

Civil litigation has all sorts of rules and procedures, that ensure that the burden of persuasion rests on the plaintiff, that only fair evidence is admitted, that the accused has the benefit of his counsel. It has opportunities for dismissal, summary judgment, judgment notwithstanding the verdict. It has a fair judge and a jury of your peers (that you can shape through voir dire), not a panel of political college administrators. It allows you to question your accuser. It allows you to acquire evidence through discovery, and gives you the benefit of an inference if the other party destroys it.

For what it's worth, here is what a bunch of professors at my law school had to say about Obama's Title IX policy: http://media.philly.com/documents/OpenLetter.pdf

>I pointed out that in the case of both false negatives and false positives, someone is denied the opportunity to pursue their education or their employment.

Except, again, this is not true. The third option is the status quo, that both persons may continue to pursue their education.

Title IX adjudication has rules and procedures. It's just that nobody thinks they're good enough. But more to the point: the result of a civil suit can include someone stripping you of your personal, material property by force of law. The stakes are higher than they are in Title IX.

Read the document I linked to see just how much of a joke those procedures were. That letter was signed by law professors ranging from extremely liberal to extremely conservative, so there was nothing ideological about their conclusions.

The stakes in a Title IX suit are not really lower in reality, if they are in theory. First, a senior expelled from a private university in their fourth year has been deprived of 1) over $200,000 spent towards a diploma they will now never receive, 2) the opportunity cost of four years of their life, 3) enormous lost future income, as they are now excluded from most professional positions, and 4) other reputational damage resulting from an adjudication that they committed sexual assault. It is an extremely rare civil suit that can actually have such catastrophic consequences for someone's life.

I think that marcoperaza and tptacek/rayiner might actually be pretty close to being on the same page here.

I don't think(?) that marcoperaza is saying that Title IX courts should have the same rules and procedures as a criminal court. It's acceptable to have a lower standard of evidence and, to a degree, relaxes rules of procedure. Especially if these rule changes are paired with limitations on penalties: as rayiner suggests no punitive punishment, just expulsion (which I agree is serious) and sealed records.

Similarly I would bet that tptacek & rayiner would agree that in some cases Title IX courts got a little off the rails with their procedures: possibly lowering the standard of evidence below "preponderance of evidence" to just "some evidence at all" or maybe in some of the worst cases "just an accusation." In addition the methods of defense left to the accused were probably not sufficient in some cases. Their ability to view and present evidence and witnesses was overly curtailed and that needs to be fixed.

I think pretty much everyone agrees that Title IX went off the rails, right?

The dispute here seems, by my reading, to be between two prescriptions for moving forward:

(1: Rayiner): The problem with Title IX is one of matching scope with procedural rigor. We don't need to raise the level of rigor to that of a courtroom if we constrain the scope and thus the consequences of an adverse action under Title IX.

(2: marcoperaza): The problem with Title IX is a simply a lack of procedural rigor. Any adverse action, no matter how tightly scoped, is problematic without the protections provided to the accused by a courtroom.

I think there's a fundamental disagreement on the place of the presumption of innocence in the process as well. I'm arguing that it is of paramount importance, and that even though a preponderance standard as used in civil courts is defensible, that standard is hollow without the extremely important procedural safeguards (cross-examination, discovery, counsel, impartial judge, fair jury, etc.) surrounding it, and the understanding that the party seeking to change the status quo still bears ultimate the burden of persuasion.

I also think that colleges are hopelessly ill-equipped to handle most allegations of sexual assault, which are highly-politicized in the current climate and often boil down to he-said-she-said disputes. A judge is very aware of the kinds of reasoning that are unfair to the defendant, such as categorical claims about men or women, or appeals to political ideology.

And finally, I think there is disagreement as to how tolerable erroneous expulsions are. I would rather err on the side of under-"conviction". Rayiner is arguing that it is just as bad to deny the accuser the right to an education free from such hazards, so we should not favor one over the other. I think the right way of thinking about it is favoring the status quo, unless there is compelling evidence to change it.