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“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” – The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe, article 6.2, and the Charter of Fundamental Rights of the European Union, article 48.

Anyone who thinks this is a good idea has their priorities totally wrong.

This disturbing shift in the burden of proof is part of a growing phenomenon, of giving members of protected classes “protection” at the expense of due process for accused people, and at the expense of basic fairness and accuracy in adjudications.

In the United States, some colleges now operate a two-track system, in terms of the burden of proof, thanks to improper demands from the Education Department’s Office for Civil Rights, where I used to work.

In ordinary offenses, they apply a clear-and-convincing evidence standard, and allow the accused protections like prior disclosure of the evidence against them (and sometimes allow the accused to personally cross-examine the complainant).

But in cases of alleged sexual harassment, assault, and domestic violence, they apply a meager “preponderance of the evidence” standard, bar any cross-examination, and deny the accused meaningful access to the evidence against him.

The Education Department has caused this result, through a misinterpretation of the federal sex discrimination law Title IX. The Education Department’s Office for Civil Rights takes the position that the clear-and-convincing evidence standard is banned by Title IX, that personal cross-examination by the accused should not happen, that interim measures against the accused should take place before any finding of guilt, and that adjudications and appeals should be done so quickly and with so little scrutiny of the complainant that effectively, basic protections for the accused become impossible to provide.

I explain why the Education Department’s change in the burden of proof was wrongful, at this link:

http://collegeinsurrection.com/2012/09/education-dept-unlawfully-changes-burden-of-proof-in-college-sexual-harassment-cases/

The Education Department ignores the fact that, as James Picozzi noted in 1987 in the Yale Law Journal, “Courts, universities, and student defendants all seem to agree that the appropriate standard of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (James M. Picozzi, University Disciplinary Process: What’s Fair, What’s Due, and What You Don’t Get, 96 Yale L. J. 2132, 2159 n. 17 (1987)

I discuss how the Education Department’s demand for interim measures against innocent students accused of sexual harassment or assault is a violation of due process here:

http://dailycaller.com/2014/05/23/punishment-without-trial-the-department-of-education-attacks-students-due-process-rights/

The Education Department also suspends normal, constitutionally-required protections through its demand for de facto racial quotas in school suspensions, by misinterpreting the federal race-discrimination law Title VI, as I explain at this link:

http://libertyunyielding.com/2014/11/13/minneapolis-imposes-unconstitutional-racial-quotas-school-discipline/

Such racial quotas violate People Who Care v. Rockford Board of Education, 111 F.3d 528, 534 (7th Cir. 1997). They also ignore the fact that student infraction and misbehavior rates vary dramatically by racial group, according to a recent study in the Journal of Criminal Justice by John Paul Wright, et al.

They always seem to ignore the fact that if an offense is particularly hard to prove, it is likely that innocence of that offense will be equally hard to prove.

Anyone seen the actual law? What exactly, would the effect be? I am a bit recalcitrant to condemn the law simply based upon news reports.

In my eyes, Mr. Bader has little credibility on the issue of unequal treatment. He is totally up in arms when those who powerful are treated unfairly. But, when the powerless are treated unfairly, he is absent.

I do think it unjust that men accused of sexual assault are exised of their rights. But I feel it more unjust that the poor do not get adequate representation in local courts because they are indigent. Let’s fix the big problems first. Then we can let Mr. Bader fix the little ones.

Allan, the Catalan News Agency indicates the law imposes penalties for discrimination, and also provides that those accused will have the burden of proving their innocence. It also indicates that the burden is already shifted to the accused in cases of domestic violence.

While I agree that large problems require attention, failing to fight back against negative changes in the law will merely result in different pervasive problems down the line.

Richard,

Yes. I can read. But I have no idea of the Catalan news agency bias. They could be the Spanish version of DailyKos or RedState… for all I know. I would like someone to actually read the law.

Mr. Bader, certainly your organization has the resources to obtain the law and at least one person who can translate.

“In my eyes, Mr. Bader has little credibility on the issue of unequal treatment. He is totally up in arms when those who powerful are treated unfairly. But, when the powerless are treated unfairly, he is absent.”

Even assuming this is true, that should make him quite credible when he chooses to speak. It would just make it an error to infer much from his silence, which is pretty much true of anybody. We are all entitled to pick and choose our battles based on our priorities, areas of expertise, or the like. There is no rule that one may not attempt to right a wrong until after one has attempted to right all greater wrongs.

Too bad we didn’t have these sorts of laws when Bill Clinton was an active politician…

Mr. Schwartz,

Mr. Bader can fight whatever battles he wants. However, when he chooses to fight for the powerful to maintain their perquisites, I think it is distasteful and, to me, it undermines his credibility, much like a gambler who loses all his money and complains society does not provide for him. (I was going to use other comparisons, but thought better of it. Hyperbole loses its effect when it goes to far. Godwin’s law and all that). Simply put: the white majority has an institutional advantage because of racism in this country. Mr. Bader refuses to recognize this in his quest for equality.

However, when he chooses to fight for the powerful to maintain their perquisites….

Bader is fighting for the idea that people are innocent until proven guilty. As his fight applies to all people in colleges and universities, how is that a perquisite for the “powerful?”

Simply put: the white majority has an institutional advantage because of racism in this country. Mr. Bader refuses to recognize this in his quest for equality.

This is one of the more convoluted statements you have made. By definition, a quest for equality would eliminate any advantage or disadvantage race, gender, creed, etc would give a person. Your statement seems to indicate that you are against equality and simply want to institute a system where “some animals are more equal than other animals.” Those who you favor would be given an advantage over others because of your feelings and disposition.

That’s not equality in any meaning of the word.

Gitagiver,

I am all for equality based on merit. We don’t have it. One of the reasons is the institutional racism of this country through at least the middle of the 20th century (especially, but not only, in the South). That discrimination led to minorities, especially African-Americans, to have less – less education, less property, less money, less rights vis a vis the police. Because of that, their children and grandchildren, even though they may not be discriminated against in the same way today, are at a disadvantage.

I would agree that the best situation would be to equalize everything. Now. Today. But we cannot. So, I am for tilting the field in favor of those who were disadvantaged by racism to compensate for the tilt of history against them.

[…] on college campuses in a post at the Competitive Enterprise Institute. He begins by pointing out a new law in a liberal part of Spain under which a person “accused of homophobic acts will have to prove his innocence, reversing the […]

Allan,

I understand what you are saying.

The problem is that while you decry what you think or feel is “institutional racism,” you actually find racism acceptable. You want racism to continue.

Just out of curiosity, when would the institutional racism that you support and feel is necessary end? Days? Weeks? Years? Decades? Centuries from now?

And just who decides that the so called “good racism” you support should end? You? Classes of people? Protected classes of people?

When do we say “it is time to look at people based on their character and abilities, and not by the color of their skin?”

There are always going to be racists. There are always going to be bigots. What you support and I am against is codifying racism and bigotry as part of the law.

The only way to end racism is to say we as a society are not going to tolerate it in shape or form. Those who say that are those who are truly against racism.

Those who do not and want to continue judging people or giving preferential treatment based on the color of ones skin are the true racists.

Is that really what you want to be?

you raise good points.

I do wonder how to fix the problem of having some people coming to the plate with two strikes and others starting their at-bat already on third base, simply because of past institutional racism.

I think it naive to think it is fair to say, essentially, “well, let’s have racism for 150 years (or 300 years) and, after I get my advantage, let’s stop.”

We do not look at people based on character and abilities. We look at them based upon their pedigree. How else can you explain Jeb Bush and Hillary Clinton candidacy? Do you really think the Walton heirs did much to earn their spot? Certainly, there are some Horatio Algers out there, but there are many, many, more Jay Gatsbys.

I do not have an answer. But I do have an ideal, as you do, that we look at people based upon their character and abilities, not based upon their luck at being born to people who benefited from discrimination to become rich and powerful.

I think it naive to think it is fair to say, essentially, “well, let’s have racism for 150 years (or 300 years) and, after I get my advantage, let’s stop.”

It is not naive to say “two wrongs don’t make a right.” We either decide that racism is wrong and end it or we do not scream and yell about so called “institutional racism.” It doesn’t matter who is getting discriminated against. Either it is wrong or it is not.

We do not look at people based on character and abilities.

Speak for yourself. Now it is you who are crossing the Rubicon into the territory of “people of a certain color cannot be of good character.”

For every Walton or Bush that has built upon the success laid by their parents, there are Kennedy’s and DuPont’s who have squandered their parents fortunes due to a lack of character. Race does not determine or preclude success and character. If it were, how do you explain Condi Rice, Clarance Thomas, Colin Powel and Allan West? How do you explain Jesse Jackson Jr being in jail? Wasn’t he born into the same pedigree that you seem to think determines a person’s path in life?

But I do have an ideal,……

The problem that I see is that you see racism in everything without proof. So instead of taking a good look at people and what they can and do obtain in life, you give people excuses to fail and others to blame. Most of your blame is heaped upon those of a certain race. You have no problems judging people not on what they do, but what race they are. How is that not racism within you?

Finally, I want to remind you that our little dialogue started with you disagreeing with Hans Bader and his quest to make sure that college students are given fair hearings and due process. Bader’s quest and drive covers males and females and people of all races. Yet for some reason, you think he is wrong to pursue justice and equality for all.

As a nation, we have to decided to stop looking at people through the prism of racism and start looking at them by their character and actions. We can’t do that as a nation until we as individuals decide that is the moral we hold to in our private lives. If one looks and sees race in people all the time, one is not a part of the solution.

One is part of the problem.

You seem to believe that this all is a zero-sum game. I believe it is not. I do not think that giving rights to one group necessarilly means taking away rights from another group.

I am of the opinion that the government should do what it can to ameliorate the corrosive affects of historical racist laws. And I believe that this has a much higher moral priority than worrying about taking away the rights of the powerful (although this is a wrong, too).

You, on the other hand, think that we should just wash our hands of the problems caused in the past and give society a chance at a fresh start, discharging the moral debts of the past. To me, that is moral bankruptcy.

I do not think that giving rights to one group necessarilly means taking away rights from another group.

Except that you are not for giving all people the same rights or privileges. You have previously written that you are in favor of “tilting the playing field” which means not treating people the same way irrespective of their race.

And I believe that this has a much higher moral priority than worrying about taking away the rights of the powerful (although this is a wrong, too).

And here I thought you weren’t for taking the rights of others away.

To me, that is moral bankruptcy.

It is not morally bankrupt to treat people as people. It is morally bankrupt to judge a person or give special treatment – either advantages or impediments – to people because of the color of their skin.

One cannot say “discrimination is wrong except when the groups I favor profit from discrimination.”

As it is, you and I are going round in circles now and we have made our points clear. I see no point in continuing the conversation. You are for discrimination and inequality in society and I am for equality in society (including the aforementioned collegiate disciplinary hearings) and against discrimination. It is clear to see which viewpoint is better for the country and society, but you certainly have the right to oppose that viewpoint.

Good luck to you.

You are treating this like a zero sum game. It is not.

Moreover, the field is tilted now. Even if we agree that all will be treated equally based on skin color from now on, the field is still tilted against those who were discriminated against in the past.

Your position continues to be “yes, the government enabled people to get advantages in the past due to discrimination against others, and those people’s children are better off because of it. But, we cannot punish the children of the favored or favor the children of the victims because…” IMHO, that is a morally bankrupt position.

How do we make up for the wrongs of slavery, Jim Crow, and legal discrimination? I don’t know. But I do know that your claim that we should not even try appalls me.

Allan,

I read your posts and I have visions of Yoda with his gnarly little hand on your head, looking skyward announcing to the heavens, “Strong is the Dunning-Kruger effect in this one.”

Two wrongs don’t make a right. It doesn’t get any simpler than that. Tilting the playing field in any direction doesn’t work.

The field is tilted now due to past wrongs. How would you plan to untilt it?

You don’t, you set it to level and leave it there. Name the one “tilt” that has worked, that hasn’t been enough. Special accomodations always result a call for more, when no such need exists.

Don’t you ever wonder how members of the disadvantaged class manage to rise above it and succeed all the while members of the advantaged class fail in spite of their supposed advantage? Nah, I didn’t think so.

So, you are in the group that says “I know there was discrimination in this country for 300 years (including colonial times). Sorry that the results of the discrimination continue, there is simply nothing we can do about it.”

Everyone who benefited from the discrimination keeps their advantages. They just don’t get new ones. I guess it is one way to look at it. And it seems fair if your grandparents were not black Americans.

Allan – plenty has been done but at some point you have to remove the tilt and given individuals the right to earn their status and feel good about having earned it. No one who was a slave in the US is still living, nor are any of their immediate descendants. I doubt there are even many grandchildren of slaves left living

We are past the point of atonement toward those harmed by slavery. Empires and bad ideas (communism, fascism) have risen and fallen in less time