It would be difficult to think of any principle more basic than that criminal defendants can’t be convicted except by proof beyond a reasonable doubt. But left-leaning “fact-checker” PolitiFact doesn’t even know it.
In an error-filled January 19 “fact-check,” PolitiFact’s Anna Orso wrote about “the ‘clear and convincing’ standard used in criminal trials.” The clear and convincing evidence standard is not used in criminal trials. Even my 9-year old daughter knows that the correct standard is “beyond a reasonable doubt.”
The Supreme Court has made this clear many times. For example, in its decision in In re Winship (1970), the Supreme Court ruled that “the Due Process clause protects the accused against conviction except upon proof beyond a reasonable doubt.”
The clear and convincing standard, by contrast, is often used for non-criminal cases, such as professional license suspensions, and issues in civil court involving fraud, punitive damages, wills or family decisions.
The context of PolitiFact’s error-filled “fact-check” is Democratic Senator Bob Casey’s partisan attack on Betsy DeVos, who has been nominated to be the next Secretary of Education by President Trump. Casey has taken issue with DeVos partly because she and her husband donated to the Foundation for Individual Rights in Education. FIRE is a civil-liberties group that mainly focuses on free-speech issues, but also seeks to protect due process, by allowing colleges to use the clear-and-convincing evidence standard (requiring roughly a 75% likelihood of guilt) in college discipline. Casey believes that standard provides too much protection to students and faculty accused of sexual harassment or assault. Instead, he believes that a lower standard of proof should be used, a preponderance (or 51% chance of guilt) standard. That is the standard used in civil court for most (but not all) issues, such as whether to award compensatory damages.
PolitiFact spins the issue as all about “rape,” titling its misleading “fact-check” as “Trump’s education pick donated to Philly group with controversial campus rape stance.” By wrongly making FIRE look weird, PolitiFact can harm DeVos through guilt by association.
But there is nothing particularly “controversial” about believing colleges should be allowed to use a clear-and-convincing evidence standard, rather than a lower standard. Once upon a time, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. 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)).
PolitiFact also makes the false claims that FIRE “frequently represents students accused of sexual assault who have lodged complaints against institutions of higher education” and “often provides legal counsel” to them. Even a cursory review of the many available court rulings in cases brought by such students would show that this is untrue: perhaps one of those many cases was brought by FIRE (Doe v. Lhamon).
FIRE is mainly concerned about free speech, not due process, much less sexual-assault-related due-process issues…