Campus Tribunals Fall Short on Evidentiary Standards

University president misses mark on internal university sexual harassment, rape charge proceedings
December 4, 2018 Updated: December 5, 2018


Tania Tetlow, president of Loyola University New Orleans, gave an important, eloquent, and even magnificent speech to the Loyola faculty and staff on Oct. 30. It was an introduction to a sexual-harassment training session mandated by the government.

Her main focus was on the evil of rape. Before her talk, I had always had an abhorrence for this abominable act, not only philosophically as a libertarian (it is an egregious violation of our private property rights of our own bodies), but also viscerally.

After all, I have a mother, a wife, a daughter, a sister, female friends, and the thought of any of them abused in this manner makes my blood boil. However, Tetlow’s stirring and authoritative presentation made this crucially important insight even more powerful. Congratulations to her for a superb and brilliant lecture.

However, she made two errors, in my view, neither of which detracts in the slightest from her splendid main thesis. Nevertheless, it might be helpful to discuss these, in the spirit of self-improvement and dialogue.

First, she said it would be equally likely that a male or a female would discover the cure for cancer, and make other such important contributions to our society. That isn’t at all unreasonable, if you only look at mean IQs of the two groups. Empirical research suggests there is not a “dime’s worth of difference” in this statistic.

However, this hypothesis is problematic when we consider the variance. The standard deviation of male IQs is much larger than that of females. This can be seen in the fact that men greatly outnumber women in prisons, mental institutions, homelessness, and premature deaths—and also in chess grandmasters, Nobel Prizes in the sciences, Fields Medals in mathematics, tech startups, presidencies and prime ministerships of countries, and more.

Men are, in effect, nature’s, or God’s, crapshoot. Women are nature’s, or God’s, insurance policy. Thus, it’s extremely likely that a man, not a woman, will in the future cure cancer, etc. Does this mean we shouldn’t support the education of our female students? Of course not. Everyone should be encouraged to make as much of themselves as possible in every dimension of human endeavor.

This is not limited to intellectual abilities. Males vary more than females, even insofar as strictly biological considerations are concerned, such as height, weight, and so on.

Larry Summers, the former president of Harvard University, lost his job in 2006 for saying something along these lines (that biology plays a role in intellectual accomplishments). Hopefully, we live in more civilized times nowadays, and that fate won’t befall me for pointing to this undisputed (although widely ignored) evidence.

Secondly, Tetlow rightly acknowledged that in criminal cases the proper evidentiary standard is “beyond a reasonable doubt.” Society, she truly maintained, is correctly repulsed by placing an innocent man in jail. Here, we give the initial nod to the accused. The burden of proof rests with the accuser.

But, she maintained, this would be improper for internal university sexual harassment or rape charges. Here, Tetlow supported the lower preponderance of the evidence standard. Yes, she acknowledged, being expelled from college is indeed a serious burden, but so is losing a tort case.

However, there is such a gigantic degree of difference in the harm that befalls someone who is found guilty of sexual exploitation and of being a tortfeasor, as to almost constitute a difference in kind. The loser in a tort case, for example, someone who broke a window with a baseball by hitting a home run, merely has to pay money damages. There is no dishonor attached to this at all.

In contrast, the person found guilty of sexual predation pays a far harsher penalty: He is kicked out of college and finds it difficult to get a job or have a relationship for the rest of his life. The stigma here, quite properly, for those guilty of such an outrage, is extreme. Do women ever lie about being sexually victimized? Of course, some do. (See Tawana Brawley, Crystal Gail Mangum, and Judy Munro-Leighton in the recent Brett Kavanaugh case.)

Let us put some numbers on this matter. To convict someone of a crime, a jury must be convinced of the guilt of the accused “beyond a reasonable doubt.” Let’s call that 90 percent. In tort cases, the number is pretty much 50.001 percent. What should it be in university findings of sexual harassment or battery? Legal theorist Tetlow wants to, in effect, equate the latter two, also 50.001 percent.

She supports President Barack Obama’s “Dear Colleague” letter calling for the preponderance of the evidence standard, e.g., 50.001 percent. In my view, the rejection of this stance outlined by U.S. Secretary of Education Betsy DeVos is the one more in accord with elemental principles of justice. Here, some intermediate degree of certainty, between 50.001 and 90 percent is far more reasonable. And far more socially just.

There is another important distinction between university disciplinary proceedings and the civil court system: the basis for justifying the preponderance standard (I owe what follows to Will Kelly, a student at Loyola’s law school). It’s important to understand why courts tolerate such a lax standard if we’re going to invoke the courts’ use of it as a justification.

Civil court proceedings afford an accused with strong measures to defend himself. They are a compulsory process to subpoena favorable witnesses and documents; and they contain the penalty of perjury to secure the truthfulness of testimony, criminal penalties for filing meritless or fraudulent claims, a legal code of evidence to exclude unfairly prejudicial evidence, a professional and (usually) elected judge to apply legal and constitutional norms that aren’t generally understood by lay people.

So, when civil courts developed the preponderance standard, they envisioned a suit between two parties on equal footing with ample protections at the disposal of the accused. I seriously doubt that our justice system would ever have sanctioned the use of the preponderance standard if not for these protections. It seems inconsistent to justify the preponderance standard by invoking civil courts without also adopting the courts’ protective measures.

Also, civil proceedings generally aren’t punitive in nature. They compensate parties for actual damages to restore them to their former situation. Claims that are punitive in nature, or claims involving malice, generally require a higher standard of proof (“clear and convincing evidence”).

It is thus faulty reasoning that a preponderance standard is sufficient for campus tribunals because, like in civil claims, no one is going to prison.

Walter Block is the Harold E. Wirth Eminent Scholar Endowed Chair in Economics at Loyola University–New Orleans. He also is an adjunct scholar at the Mises Institute and the Hoover Institute.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.