by Claude Opus 5.5
Should universities be permitted to impose expulsion at all for conduct the state has declined to prosecute? Consider the analogy with professional regulators.
In the case behind these seminars, the district attorney declined to bring charges, but Cornell’s Title IX process went ahead and resulted in expulsions and suspensions. To some, that sequence seems backwards: if the state, with all its investigative power, concluded that it could not bring a case, by what right does a university impose its most severe sanction for the same conduct? Defenders of the university’s position often reach for an analogy with professional regulators, which routinely discipline members for conduct that has not led to conviction. This discussion tests that analogy and asks whether, and under what conditions, expulsion without prosecution is legitimate.
What a decision not to charge means
It helps first to be precise about what the state has decided. A decision not to prosecute is not a finding of innocence. In England and Wales, the Crown Prosecution Service applies a two-stage test: whether there is a realistic prospect of conviction, meaning that a jury properly directed is more likely than not to convict to the criminal standard, and whether prosecution is in the public interest. American prosecutors apply comparable, if less codified, judgements. A decision not to charge therefore typically means that the prosecutor doubts the case can be proved beyond reasonable doubt. It does not mean that the conduct did not occur, and it is consistent with the conduct being more likely than not to have occurred.
So a university finding of responsibility on the preponderance standard does not contradict the prosecutor. The two institutions answer different questions using different thresholds.
The professional regulator analogy
Professional regulators offer the closest parallel. In the UK, medical practitioners’ fitness to practise is adjudicated by tribunals that apply the civil standard of proof, having moved away from the criminal standard in 2008. They may strike a doctor off the register for misconduct that has never been prosecuted, and in some cases after an acquittal. The rationale is that regulation is not punishment. Its purposes are to protect the public, maintain public confidence in the profession and uphold professional standards. Teachers, lawyers, nurses and many others are regulated similarly.
If universities are analogous, expulsion is legitimate in the same way: it is not a criminal penalty but a judgement that a person is not fit to continue as a member of a community with its own standards and its own obligations to protect others.
Where the analogy holds
Several features carry over. Like regulators, universities have a protective function: they are responsible for the safety of other students, much as regulators are responsible for patients or clients. Like regulators, they govern membership in a community defined by standards. Like regulators, their sanctions do not deprive anyone of liberty. And like regulators, they must act even where the criminal law cannot, because the criminal standard of proof is designed to be hard to meet.
Where it strains
The analogy is imperfect in ways that matter.
Voluntary entry into a regulated role. Professionals enter a regulated field knowing that they accept special obligations in exchange for a public licence. Students enter an educational relationship that is not primarily defined by public-protective duties. The case for subjecting them to quasi-regulatory discipline is less obvious, although universities’ codes of conduct do impose obligations.
Procedural architecture. Professional regulators are statutory bodies with independent tribunals, legally qualified chairs, rights to legal representation and appeals to the courts. University processes vary widely and are often run by staff of an institution with interests in the outcome. The analogy supports expulsion only if university processes approach the procedural quality of the regulators they are compared to.
Nature of the protected public. Regulators protect third parties who rely on professional competence: patients, clients, pupils. Universities protect a community in which the respondent is also a member with interests in education. The balance between protection and the respondent’s interests is therefore different.
Stigma and function. A professional struck off loses a licence; the reason is often public. A student expelled for sexual misconduct may carry a stigma that functions much like a criminal record, especially if it becomes public, as it did in this case. If the sanction functions punitively, the claim that it is not punishment weakens, and the case for stronger procedural protection grows.
Should universities be permitted to expel?
On balance, yes, but with conditions that the analogy itself suggests.
First, the rationale must be protective and membership-based, not retributive. Universities should frame expulsion as a judgement about continued membership and the safety of others, not as a substitute criminal punishment.
Second, the standard of proof should be proportionate to the gravity of the sanction. There is a case that the most severe sanction should require more than a bare preponderance, perhaps clear and convincing evidence, while lesser measures could rest on preponderance.
Third, procedural quality should approach that of professional tribunals: independent adjudicators, meaningful representation, access to evidence, reasoned decisions and an effective appeal.
Fourth, findings should be framed and communicated as non-criminal, to limit the risk that they function as unofficial convictions.
Conclusion
A decision not to prosecute tells us that the criminal standard probably cannot be met, not that nothing happened. Professional regulators show that institutions can legitimately remove members for serious misconduct without a conviction, provided their purpose is protective and their procedures robust. Universities can claim the same authority, but only to the extent that they adopt the regulators’ discipline: protective rationale, proportionate standards and genuine independence. Without those, the analogy becomes a borrowed justification for a process that may not deserve it.