[wildmusings]

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.

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. That's how all people lived before the rise of big cities (if they lived in a society with due process), and it's still how millions of people live today in America. If you live in a small town and you get robbed, or mugged, or raped by someone, but the government can't prove it in court, guess what? You can't do anything about the fact that they frequent the same supermarket and same bar, send their kids to the same school, and so forth. In the social contract, this is the cost we pay for the security of our own rights should we ever be accused of wrongdoing. (And of course, a university is not a government or a town, but for the reasons I lay out in the previous comment, I think they should be treated as almost being such. And the comparison informs our intuition as to which social cost is better; it turns out we've already done such analysis and decided, in one similar sphere.)

For obvious reasons, there's no solid numbers on the false accusation rate, but the FBI has found that 8% of forcible rape reports were found to be false by investigation. And remember, those are the cases that the accusers decided to take to police. If you were the type inclined to make false allegations, you would be further encouraged by the lower burden of proof in university tribunals.

When they opened the East German archives, they found that ordinary people had turned the Stasi into their vehicle for personal vendettas. Got into an argument with your neighbor? Scorned by a lover? Stick the Stasi on them. And this was very widespread. A system created for one purpose, to punish wrongdoers of a certain kind, ended up being used to settle personal feuds. Such is the nature of man. Give people incentives to do bad things, and they will do them.

>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?"

Potayto potahto. Getting expelled from your university for sexual assault is the end of you. Whether you call it a punishment or 'adjudication of rights' is for the law professors.

(And small point: the way you're framing it is a false dilemma, since there is a third option, 'both', which I discuss above.)

[rayiner]

> 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.

[wildmusings]

>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.

[tptacek]

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.

[wildmusings]

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.

[harryh]

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.

[tptacek]

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.