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July 23, 2012

More Advice on Railroading Males in Sex Cases

Not one college or university that I know of has resisted the notorious "Dear Colleague" letter' urging a lowering of the burden of proof in campus sexual assault cases. Reasons for this timidity include the fact that powerful forces within the academy fully support the attack on due process by the Department of Education's Office of Civil Rights, the source of the letter.

A reminder of which way the campus winds are blowing comes in an email from the Association of Title IX Administrators--yes, the  Title IX bureaucracy is bloated enough to evolve an actual association like this. In its "Tip of the Week," the Association urges colleges and universities to modify their campus appeals processes in such a way that would almost certainly render successful appeals less likely. Specifically, the group wants to exclude from the appeals process the college president--or, indeed, "any high-ranking university official." Why? Because "deciding appeals makes [top administrators] a target personally for a lawsuit. Why serve that prize to the plaintiff's attorneys on a silver platter?"

Of course, if the goal is preventing lawsuits, a better approach would be setting up a procedure that respects the rights of all parties, including the accused student, recognizing that the truth is more likely to emerge from a fair process in which all sides' rights are respected. But the Association has little interest in that sort of arrangement.

Of course, if the goal is preventing lawsuits, a better approach would be setting up a procedure that respects the rights of all parties, including the accused student, recognizing that the truth is more likely to emerge from a fair process in which all sides' rights are respected. But the Association has little interest in that sort of arrangement.

It's worth remembering that the sexual assault procedures about which the Association writes are already severely tilted in favor of the accusing student--both because of the OCR's pressure for colleges to employ the minimal "preponderance of evidence" standard, and because many colleges (Cornell, UNC, and Yale come to mind) have various procedures (such as preventing cross-examination or denying accused students the right to counsel in the campus proceedings) that weaken the ability of an accused student to present a full case.

Perhaps more important than the fear of successful lawsuits, the Association notes that allowing presidents to hear appeals carries a risk: they might upend the judgments of the generally pro-accuser campus disciplinary tribunals. (Recall the Yale guilty-with-no-chance-of-innocence structure as a jarring example.) Presidents and other high-ranking officials, according to the "Tip of the Week," are "not always good at being deferential." Such lack of deference might lead to a "rehashing" of "facts," something the Association very much wants colleges to avoid.  The "Tip of the Week" recommends that appeals "be heard by a committee, and it need not be a committee that is higher up the food chain than the original deciders." And best of all, it seems, is "the model of an equity grievance panel, in which appeals decisions for the accused student results not in dismissal but the case being "returned to the original decision-maker(s) in most cases." In this Kafka-esque approach, an accused student whose rights were violated could spend his entire college career dealing with the disciplinary process, with appeal after appeal sending his case back to be reheard by the same biased "fact-finders" that made the initial ruling.

Seeking to build off the momentum from the "Dear Colleague" letter, the Association also is urging administrators to receive special training in a four-day session devoted to how to implement new, guilt-presuming sexual assault standards.

When colleges and universities use the "adversarial process" to deal with such complaints, the Association laments, "Justice is rarely done. Truth remains elusive." (Perhaps we should simply shut down the court system, as well.) What explains this failure? Too many schools are "trying to fit campus sexual misconduct into a student conduct/discipline framework." Instead, according to the Association's training guide, colleges need to use a "civil rights investigation model for addressing campus sexual misconduct"--which has the advantage, for those interested in overriding due process concerns, that it is "not police-led investigation, and it is not the same as investigating a student conduct violation."

The topics make clear the one-sidedness of the session's agenda. (In addition to administrators, the Association invites "prosecutors, sex crimes investigators, magistrates, victim advocates and judges"--but not defense attorneys or civil liberties advocates.) Topics on how colleges should respond to sexual assault/harassment claims include such issues as "due process myopia" and "is a hearing necessary?" The list of "experts" invited to train campus administrators includes Brett Sokolow, who rivals the notorious Wendy Murphy in the almost cheerful willingness with which he presumes guilt in sexual assault cases. As FIRE's Will Creeley has correctly noted, Sokolow has exhibited a "disdain for due process [that] echoes the worst instincts of the angry mob."

Between travel, rooms, and registration fees, the Association's conference--conveniently hosted in sunny Orlando--will cost hundreds of dollars per participant. How many supposedly cash-starved public colleges and universities will nonetheless fork over money to send administrators for this training?

Comments (2)

Jonathan Cohen:

The problem is that the driving force behind these new rules is a belief that evidence based systems of justice need to be replaced by "narrative" based systems of justice. Universities have no shortage of identity studies faculty and diversity administrators who care more about promoting the notion of deeply ingrained racism and misogyny than finding the facts about particular cases. The ranks of the hearing and appeals boards will be made up of such people. It will be a closed system aimed at securing verdicts that support their beliefs rather than ones which will be based on facts.

In essence, such due process protections as the right to counsel and the right to confront ones accuser will be subjected to "narrative filters" that simply remove them from the proceedings.

This problem is not going to be easy to overcome. A great deal of proselytizing for these narratives is endemic in much of the education system where judging people as individuals has been replaced by viewing them through the prism of race, gender, class, etc.

Replacing the current national administration is by no means a cure-all for solving this problem but it would be a start. The staffing of the civil rights division of the justice department and various other departments of government with people whose resumes make them candidates for Duke's "Gang of 88" makes the task of restoring reasonable procedures very difficult.

The "preponderance of evidence" standard is coming out of the department of education. The end of welfare reform as we know it is coming from Health and Human Services. The unwillingness to pursue cases of voting rights abuses when the defendants are minorities is coming from the Justice Department.

Congress makes the laws but the executive branch decides how to carry them out and the current administration if allowed to continue will continue to push narratives to satisfy their most enthusiastic constituencies and for male college students this will mean a diminishing of their rights to due process.

D. Schneider:

There is an elephant in the room which no one in academia wishes to see...

This is that the entire concept of educational institutions conducting proceedings to determine the innocence or guilt of someone accused potential crimes is a likely civil rights violation. Schools holding jurisdictional authority to conduct disciplinary actions which have civil or criminal penalties in the "outside" world is simply a hold-over from Medieval times.

During the time that universities were being founded, they were self-governing under (usually) royal authority and not subject to local restrictions. The concept that today's educational institutions have the authority or even the right to judge a person accused of a potential crime is a vestigial reminder of that era.

It is inevitable that some person found guilty in one of today's educational Star Chambers will launch an expensive, likely successful, civil rights action when an equally inevitable miscarriage of justice occurs. The very concept than a school administrator can hold such power is repugnant to the rule of law under our Constitution and a probable violation of the 14th Amendment. Remember that students in higher education are adults under the law with the full rights of other citizens. The fact that our administrations so quickly kowtow to the whim of the "Dear Colleague" letter is more a reflection of their collective moral cowardice than a concern for justice. It is simply the wrong thing to do.

The solution to all of this is to recognize that this is the 21st Century, not the 14th. The concept that educational institutions have legal authority to impose penalties upon students or faculty over criminal actions which have not been adjudicated by civil authorities is highly questionable.

Simply put, stop being judge and jury. Educators and administrators are not only lacking the competence to judge these sorts of cases, but simply do not have the legal right to do so. Ultimately, all that will be accomplished is costing your school millions when an outraged jury decides in favor of a wronged student. Don't be on the wrong side of a Supreme Court decision. It isn't a good career move.

What should be done is to refer potentially complaints to civil authorities. The accused must be "innocent until proved guilty beyond reasonable doubt". Title IX does not trump the Constitution.

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