Bader's initially emphasized PolitiFact Pennsylvania's apparent ignorance of the "reasonable doubt" standard in United States criminal cases:
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.”By the time we started looking at this one, PolitiFact Pennsylvania had started trying to spackle over its faults. The record (at the Internet Archive) makes clear that PolitiFact's changes to its text got ahead of its policy of announcing corrections or updates.
Eventually, PolitiFact continued its redefinition of the word "transparency" with this vague description of its corrections:
Correction: An earlier version of this article incorrectly characterized the standard of evidence used in criminal convictions.Though PolitiFact Pennsylvania corrected the most obvious and embarrassing problem with its fact check, other problems Bader pointed out still remain, such as its questionable characterization of the Foundation for Individual Rights in Education's civil rights stance as "controversial."
For our part, we question PolitiFact Pennsylvania for apparently uncritically accepting a key premise connected to the statement it claimed to fact check:
Specifically, Casey said the Philadelphia-based Foundation for Individual Rights in Education supports a bill that "would change the standard of evidence." He said the group is in favor of ditching the "preponderance of the evidence" standard most commonly used in Title IX investigations on college campuses and instead using the "beyond a reasonable doubt" standard used in criminal cases.PolitiFact claimed to simply fact check whether DeVos had contributed to FIRE. But without the implication that FIRE is some kind of far-outside-the-mainstream group, who cares?
We say that given PolitiFact Pennsylvania's explanation of Casey's attack on DeVos, a fact checker needs to investigate whether FIRE supported a bill that would change the standard of evidence.
PolitiFact Pennsylvania offers its readers no evidence at all regarding any such bill. If there is no bill as Casey described, then PolitiFact Pennsylvania's "Mostly True" rating serves to buoy a false charge against DeVos (and FIRE).
Ultimately, PolitiFact Pennsylvania fails to coherently explain the point of contention. The Obama administration tried to restrict schools from using the "clear and convincing" standard.
Thus, in order for a school’s grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard (i.e., it is more likely than not that sexual harassment or violence occurred). The “clear and convincing” standard (i.e., it is highly probable or reasonably certain that the sexual harassment or violence occurred), currently used by some schools, is a higher standard of proof. Grievance procedures that use this higher standard are inconsistent with the standard of proof established for violations of the civil rights laws, and are thus not equitable under Title IX. Therefore, preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence.FIRE objected to that. But objecting to that move from the Obama administration does not mean FIRE advocated using the "beyond a reasonable doubt" (how PolitiFact's story reads now). That also goes for the "clear and convincing" standard mentioned in the original version.
PolitiFact Pennsylvania simply skipped out on investigating the linchpin of Casey's argument.
There's more hole than story to this PolitiFact Pennsylvania fact check.
Be sure to read Bader's article for more.
Update Jan 21, 2017: Added link to the Department of Education's April 4, 2011 "Dear Colleague" letter