By KC Johnson
The ugly episode at Brown--a botched hearing of an alleged rape case-- is part of a disturbing pattern of how sexual assault procedures are handled at Ivy League schools. Typically, the schools impose a gross form of injustice, permanently damaging the reputation of the accused male, then congratulate themselves for acting so fairly and appropriately.
According to the definitive 3,279-word account published by the Brown Spectator, Richard Dresdale, a wealthy donor to Brown and father of the accusing student, Marcella Dresdale, secretly met with a key witness in the case, and agreed to help promote that witness's career. Then the witness, student counselor Shane Reil, made a damning statement against the accused student, William McCormick. In a criminal case, this would obviously be witness tampering, and it looks like that here as well, but a Brown administrator said there was no violation of university procedures in the secret meeting and what appeared to be a bribe to a witness.
As I reported here yesterday, editor Ryan Fleming's Spectator article uses Brown's own reports to show that Marcella Dresdale's story dramatically changed over the course of a week--from an allegation that McCormick was stalking her and behaving creepily to a claim of a violent rape. Dresdale did not seek medical attention after the alleged rape, nor did she file a report with either the campus police or the local police.
In an interview with the Brown Daily Herald, Brown associate counsel Ted von Gerichten congratulated his bosses for a "pretty robust" protection of due process and a firm commitment to "give individuals a fair hearing," though these vaunted protections did not include requiring a key witness to reveal a promise of future assistance from the accuser's father.
The Department of Education's Office of Civil Rights encouraged corner-cutting procedures in a "Dear Colleague" letter last year to college and universities, lowering the standard for a campus conviction from beyond a reasonable doubt to "a preponderance of evidence" standard (just over 50 percent of evidence), thus making it next to impossible for an accused male to clear his name.
At Cornell, the university responded to the OCR's "Dear Colleague" letter by not only lowering its conviction threshold but also by stripping from accused students the right to have an attorney cross-examine their accuser. (It's so much easier to avoid detection of chicanery like the Reil-Dresdale relationship without a lawyer asking probing questions.) According to a Cornell administrator, this change wasn't in any way problematic, since he knew of no evidence "that an attorney in an adversarial system is more effective at discovering the truth than an independent investigator [hired by the university and accountable to Student Life bureaucrats] is."
And yet this system--in which an accused student lost his right to have his attorney cross-examine the witness whose testimony could produce his expulsion--was described by Cornell university counsel James Mingle as "really . . . sensitive to the rights of both the parties"--the same sort of undue self-congratulation issued by Brown.
Again: according to Cornell's lawyer, a system in which an accused student loses the right to have his attorney cross-examine the accuser is "really . . . sensitive" to the accused student's rights.
At Yale, the university responded to pressure from the OCR (which predated the "Dear Colleague" letter) by revamping its sexual assault procedures to create a new mechanism deemed an "informal complaint." This procedure can be triggered by as little as the "worry" of an accuser, who is promised "considerable control . . . as the process unfolds." The accused student has no right to legal representation in the procedure, nor can he cross-examine the accuser.
And yet this system--in which an accused student can face charges for worrying a female undergraduate, all while having virtually no opportunity to prove his innocence--was described by Yale president Richard Levin as "necessary, but . . . not sufficient" to safeguard the accuser's position.
Again: according to Yale's president, it was not "sufficient" for the university to respond to the OCR by deeming a "worry" sufficient grounds to bring a sexual assault claim.
Given that the procedures described above are acceptable to Ivy League general counsels or presidents, exactly which due process rights--if any--for accused students would they be willing to endorse?
What remains striking is how little push-back these preposterous statements have received. FIRE has passionately advocated on behalf of retaining due process in sexual assault cases, but thus far has had little success. The campus newspapers at each institution have been voices of reason, but they too have been ignored. Local politicians have been silent--as have trustees, who have a fiduciary duty to speak up on behalf of the institution's long-term health. And with the critical exception of the Cornell law faculty, the traditional academic defense of due process largely has been absent.
That leaves one group capable of effective resistance. The typical Ivy League education costs more than $200,000. How long will parents--of male students, at least--be willing to spend such a sum knowing that their sons face the risk of experiencing the "due process" outlined by top administrators from Yale, Brown, and Cornell?