In response to pressure from the federal government and campus “activists,” two more high-profile universities are weakening due process protections afforded to students accused of sexual assault (and, regarding campus offenses, only to those students).
The Daily Princetonian reports that a Princeton faculty committee has recommended lowering the school’s burden of proof for sexual assault cases (but only for sexual assault cases) from a clear and convincing standard (around 75 percent) to the OCR-demanded “preponderance of evidence,” 50.01 percent. The new policy allows accusers to appeal not-guilty verdicts. And, perhaps most ominously, it ensures that students will not be judged by a jury of their peers, but instead by a specially-appointed committee of administrators and outside investigators—working under the supervision, it seems, of the school’s Title IX coordinator. Princeton was the last Ivy League school not to employ the preponderance-of-evidence standard. The proposal is up for approval at a September 15 faculty meeting: will any Princeton professors stand up for due process?
Related: A Depressing Year For Campus Due Process
At least the Princeton proposal voluntarily allows accused students to have an attorney. The North Carolina state legislature, by contrast, had to force the state’s flagship public institution, the University of North Carolina, to extend that right to students accused of sexual assault. And as the school’s new sexual assault policy reveals, any lawyer hired will have to earn his or her money.
UNC has adopted a sort of “triple-jeopardy” structure for students accused of sexual assault. The new system creates an investigator—hired and overseen by the school’s Title IX or EEOC office, so clearly not “independent” in any way—to investigate the allegation and make a determination of whether a violation of the policy occurred. (The investigator, who lacks subpoena power, is supposed to complete his work within 35 business days.) But even if the investigator concludes that nothing happened, the accuser can demand a hearing before a three-person panel. (The panel, which lacks power to compel testimony under oath, is supposed to complete its work within 25 business days.) But even if that panel, on which students are forbidden to serve and whose members receive special Title IX training, joins the investigator in concluding nothing happened, the accuser can appeal the finding to a UNC administrator, who can nonetheless deem the accused student a rapist if the administrator concludes that the hearing panel or investigator in some way violated procedures.
In short: UNC can brand a student a rapist even if both the investigator and the three-person panel independently determine that the accused student is not in any way culpable.
Related: Campus ‘Due Process Has No Lobby’
UNC also has structured its procedures to minimize the accused student’s attorney’s impact. The accused student is severely limited in introducing new evidence once the investigator has completed his work. But since the investigator isn’t compelled to share his evidence with the accused (he only has to produce a draft of his report), the accused student can effectively be prevented from offering exculpatory material at the hearing. Moreover, the attorney is allowed to review the investigative report in a UNC building, but can neither photograph nor copy the document. During the hearing, the lawyer can’t cross-examine the accuser; the attorney can only submit questions to the hearing chair, which can ask the question, modify it, or refuse to ask it. Indeed, the hearing procedures don’t even guarantee that the lawyer can see the accuser as she gives her answers, since the accuser can request to testify behind a screen. The lawyer also isn’t guaranteed a right to cross-examine the accuser’s witnesses; the hearing chair can take over that capacity if the chair determines that the attorney’s questioning “will be unduly intimidating or burdensome.” It does not appear as if the lawyer can appeal that decision.
The new UNC system has one other critical, due process-unfriendly, element. Bowing to OCR’s demands, it uses the preponderance-of-evidence standard. But it goes well beyond OCR in one important respect: it allows a student to be branded a rapist based on a 2-1 vote of the disciplinary panel. Even OCR doesn’t require schools to abandon unanimous verdicts, and the UNC guidelines do not explain to why the university followed this unusual course.
Even once a student graduates, he can still be subject to some action from UNC. The school allows the filing of anonymous reports of sexual assault—to “help give university administrators a better picture of the number of assaults that are occurring within the university student community.” Note the policy’s wording—UNC assumes that the assault has occurred based solely on the anonymous filing. And, much like the new Harvard system, the UNC policy has no statute of limitations, allowing for the filing of complaints years after the alleged event, even when both the accuser and the accused are no longer students at the school. UNC does concede that in such circumstances, it might be difficult to impose discipline.
The new policy sends a clear message to the state legislature: UNC might have been forced to grant an accused student the right to an attorney. But the university will do everything possible to deny the accused meaningful due process.
