Monday, December 09, 2013


James Taranto accuses the Obama administration of waging a "war on men" through its efforts to ensure colleges take a harder line on sexual assault on campus. His evidence is an anecdote of an Auburn student who he contends was falsely accused of sexual assault but was nonetheless expelled from campus. I've talked before about my fear of being falsely accused of something, so I should be a sympathetic audience. I am not, because even assuming that the student in question did not commit any wrongdoing at all (and of course, Taranto is a polemicist with an interest in recounting the facts in his favor), he still fails to actually make an argument about what is supposedly systematically wrong with how colleges -- post-Obama administration pressure -- handle rape allegations such that it represents a "war on men".

To begin, it is important to remember (since Tarento apparently does not) that we are not dealing with a criminal proceeding, or even a civil proceeding (though it is closer to the latter). There is no risk of prison time here. There isn't even the risk of monetary damages. The student here wasn't sent to jail, he was sent to the University of South Carolina Upstate.

All Auburn, a private actor, can do is decline to continue its private relationship with one of its students. One can put varying value on just how important it is that persons be "protected" in that circumstance (more on that below), and indeed I may well think it is deserving of considerable protection. But at the outset, the default rules should be those in a private, quasi-judicial proceeding that does not carry with it criminal penalties or even significant civil penalties. The question is whether or not Auburn's processes match up with the degree of "process" required in those circumstances.

With that prelude, let's address Tarento. He basically has three objections:

First, he is upset that the tribunal credited the victim over the accused. Taranto doesn't think that the victim was persuasive, and he particularly doesn't think that the testimony of the sexual assault experts was probative in making her more credible. But in any adjudicative proceeding credibility assessments are going to be somewhat arbitrary -- based on gut feelings and assessments of he-said-she-said claims. That's unavoidable, and Taranto provides no way of avoiding nor any reason why it is more distressing in this context than in other "civil" (or private) tort claims.

Second, Taranto doesn't think the proceedings were sufficiently professional or legalistic. Again, it is doubtful that Taranto thinks every private institution needs to have a full-blown judicial hearing in front of a federal judge every time it wants to discipline someone. Indeed, compared to the due process I'd get if, say, my employer fired me tomorrow based on whatever rationale (which is to say, none at all), Auburn still comes out far ahead (perhaps I am not giving Taranto enough credit, and he is actually a major union booster and critic of the at-will employment doctrine). Even in the university context, I doubt he believes such process is necessary in the majority of discipline cases(if someone was being expelled for vandalism, say, or cheating).

Finally, Taranto complains about the burden of proof requirement -- a "preponderance of the evidence" standard. It is interesting that, given his frame of an Obama administration "war on men", he quietly admits that this is the only element of Auburn's process that is actually attributable to the Obama administration. In any event, a preponderance of the evidence standard -- which basically means "more likely than not", is apparently outrageous, but once again Taranto doesn't give any reason why. The preponderance of the evidence standard, after all, is the default legal standard in non-criminal cases. If private party A tries to enlist the levers of the judiciary to deprive private party B of a property interest in a non-criminal matter, generally the case will be adjudicated under the preponderance of the evidence standard.

Should there be a different standard of proof for private adjudications of sexual assault claims, making it harder for victims to win their cases in the university context? Maybe! But Taranto doesn't provide one. He basically yells that colleges provide the same basic adjudicatory standards in sexual assault cases as they do in other analogous contexts (which is to say, far more than private employers provide), as if that is self-evidently outrageous, and that in a particular case in Auburn it might have led to a person losing a property interest that he shouldn't have. Even if he is right about this case (and again, he is no more reliable a narrator than anyone else), it doesn't show any defect in the procedures -- even very good systems make mistakes, and the anecdote is not a substitute for data. And while an argument for more stringent standards could certainly be made, such an argument would need to be both more vigorously argued and (more importantly) generalized to a broader commitment to the rights of persons who have a functional liberty and property interest that derives from a contractual arrangement with a private entity. If Taranto wants to go down that road, he's welcome to it, but he can't demand a privileged position only for accused rapists.

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