Another day, another two-tier student disciplinary policy--this time at Cornell. The Cornell Daily Sun reports that the university has modified its sexual assault policy, in response to pressure from the Russlynn Ali-led Office of Civil Rights in the Department of Education. As the Obama administration demanded, the key change comes in a lowering of the burden of proof to a preponderance of the evidence (50.1 percent) when Cornell students allege sexual assault. For all other disciplinary matters, however, the university will continue to employ a standard of clear and convincing evidence, which, Cornell's disciplinary guidelines helpfully inform students (p. 29),"is a higher standard than the civil law's more-likely-than-not standard." In a demonstration of cowardice, not one member of the University Assembly voted against the rule change.
The rationales for the new policy from Cornell administrators ranged from comical to frightening. Cornell president David Skorton celebrated the undermining of due process on his campus by pronouncing himself "gratified by the measured and deliberate consideration given to this consequential issue." Judicial Administrator Mary Beth Grant, as paraphrased by the Sun, went much further: "Lowering the burden of proof for sexual assault cases will encourage more victims of sexual violence to file complaints, Grant said. Grant acknowledged the concern expressed by opponents of the change that an increase in allegations of sexual assault will result in more students being falsely accused or found in violation. Still, she said she is optimistic[!!!] about the effects the change will have on assault investigations."
In one respect, the new Cornell policy reflects the spirit of the OCR's hostility to due process while going beyond the actual terms spelled out in the "Dear Colleague" letter. Under the new policy, students accused of sexual assault will not have the right to have an attorney cross-examine their accuser--a right that students accused of other offenses will retain. Even the "Dear Colleague" letter does not demand that universities strip students of the right to effective legal counsel.
Alan Mittman, director of the Cornell bureaucratic agency that will now be charged with investigating student claims of sexual assault, dismissed the significance of the change, which should horrify anyone with a pretense of respect for due process. Mittman wildly asserted that because representatives of his agency would ask the accuser questions about her claims, there wasn't any need for additional cross-examination. "'I find no evidence,'" he told the Sun, 'that an attorney in an adversarial system is more effective at discovering the truth than an independent investigator is.'"
Even more stunning than Mittman's comment was the legal analysis from Cornell's university counsel, James Mingle. He denied that the OCR policy was "very unreasonable," and claimed that lowering the burden of proof to achieve conviction and removing the right to have an attorney cross-examine the accuser showed how Cornell was "really . . . sensitive to the rights of both the parties." I wonder if Mingle could get one criminal defense attorney (besides, that is, Mary Beth Grant, who once worked as a legal aid attorney) to agree to that statement.
It seems highly unlikely Mingle will find such a lawyer on the Cornell faculty--the policy change was adopted over the passionate, and intellectually unrebutted, opposition of many Cornell law professors. Taking note of the enormity of an accusation of sexual assault, law professor Cynthia Bowman argued that fairness "requires a rigorous standard of proof and many due process protections . . . Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian." Law professor Kevin Clermont added, "Not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque. Across the political spectrum, law professors are in agreement that such an administrative procedure is fundamentally unfair."
We're in the midst of a presidential campaign in which the two parties are squabbling over the candidates' positions on dogs. Yet while the House has seemingly chosen to investigate every real and imagined scandal under the sun, House committees have been silent regarding the revolutionary change demanded by the administration to students' due process rights. Meanwhile, even as issues related to college students--keeping student loan rates affordable--have been thrust of the center of the campaign in recent days, to my knowledge no reporters have asked for a comment from the White House as to why the administration would demand that colleges eliminate due process protections for university students around the country. A curious conspiracy of silence--as elite university after elite university implements two-tier judicial systems that make a mockery of the American constitutional heritage.