[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.

[wildmusings]

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.

[tptacek]

You're restating what I just said. Presumption of innocence is a procedural control. Also: "presumption of innocence" is a term of art in criminal cases. In civil cases, what you have is the burden of proof (which is usually on the plaintiff). And, of course, at law, the word "proof" means something very different than it does on HN.