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Boulder, CO Newspaper Editorial: A spectacularly bad idea from Jared Polis

The central political dynamic the world over is the power of institutions, including governments, versus the rights of the individual. The great American experiment in individual freedom and representative democracy had its philosophical roots in the Enlightenment, which challenged millennia of dictatorial human history by suggesting that individual rights are fundamental.

So we were dumbfounded last week to read Boulder Congressman Jared Polis's argument at a congressional subcommittee meeting in Washington that institutions of higher education should be able to expel students accused of sexual assault even if it seems unlikely they are guilty.

"If I was running one, I might say, 'Well, you know, even if there is only a 20 or 30 percent chance that it happened, I would want to remove this individual,'" he said.

Such a policy would be such an astonishing abrogation of due process that it's hard to know where to start in condemning it. Our entire criminal justice system is built on the premise stated by the British jurist Sir William Blackstone in 1765: "Better that 10 guilty persons escape than that one innocent suffer."

John Adams, our second president, elaborated on this principle while shouldering the unpopular duty of defending British soldiers accused of murder in the Boston Massacre of 1770:

"It is more important that innocence should be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that all of them cannot be punished," Adams declared. Punishing the innocent erroneously, he argued, removed the incentive to act virtuously, which "would be the end of all security whatsoever."

Polis would no doubt reply that he was not talking about the criminal justice system. In fact, he made it sound like getting expelled from college is no big deal.

"If there are 10 people who have been accused, and under a reasonable likelihood standard maybe one or two did it, it seems better to get rid of all 10 people," he said. "We're not talking about depriving them of life or liberty, we're talking about them being transferred to another university, for crying out loud."

In a subsequent interview with Reason Magazine, Polis argued that if his son were the subject of a baseless charge of sexual assault at a university, he would recommend he transfer because "it can be a living hell" to go through endless campus investigations.

This, of course, misses the point entirely. A voluntary withdrawal is the individual's choice. An expulsion is the opposite. To think a young person's reputation would not be severely damaged by such an expulsion, and that a comparable university would happily accept an expelled student's transfer application, is naïve.

Imagine the incentive to make a baseless charge of sexual assault against someone you didn't like if the mere allegation was likely to result in that person's expulsion under the "standard" adopted by your university.

Far from making college campuses less rigorous in their adjudication of such allegations, we propose making them more rigorous by referring all sexual assault allegations to local police and prosecutors for adjudication by the criminal justice system. If a student is guilty of sexual assault, that student should face a penalty worse than expulsion — that student should be subject to all the sanctions of the criminal justice system.

Over and over, college campuses have demonstrated a lack of expertise in pursuing such allegations. It is not, after all, what faculty and administrators are trained to do. Tales abound of athletic departments covering up for star players.

Sexual assault is a serious problem, in society and on college campuses. The answer is not to throw up our hands at the prospect of adjudication and delete all the messy steps between allegation and punishment. The answer is to preserve individual rights through due process, assign such cases to institutions trained to investigate and prosecute them, and punish those found guilty to the fullest extent of the law.

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