By KC Johnson
Now that college hearings on rape and sexual assault are much in the news, particularly for their arbitrary procedures and unjust results, there's a basic question to answer: why are colleges doing this at all? Why do they need to develop their own investigative and punishment procedures to duplicate a process that already exists in the criminal justice system?
Sexual assault is the only violent crime routinely investigated by college disciplinary tribunals. Imagine, for instance, the outcry if colleges claimed a right to investigate murders or attempted murders by students that occurred on campus. Neither the Department of Education's Office for Civil Rights (OCR) nor the activists that have demanded weakened procedural safeguards have ever offered a convincing answer to this question: why should a college disciplinary system clearly unsuited for investigating murders nonetheless be tasked with meting out justice for alleged sexual assaults. Nonetheless, as OCR made clear most recently in its settlement with SUNY, the agency believes that colleges have an independent duty to investigate claims of sexual assault--even when law enforcement concludes that the accuser is lying.
Two high-profile pieces from earlier this year touched on the absurdity of failing to treat sexual assault as the crime that it is. Writing in the Times' "Room for Debate," the Student Press Law Center's Adam Goldstein noted the odd concept of a major felony being "investigated and adjudicated by amateurs, in secret, without subpoena powers, a right to representation, or any kind of due process controls." Moreover, he added, figures on all sides of the debate should understand that "when the best case outcome of the campus disciplinary process [expelled from school, but with 'a rapist walking the streets'] is the worst case outcome of the criminal justice process, you have to ask: What is this process for?" Goldstein closed with a simple message: colleges should "leave justice to the justice system."
No Counsel Allowed
A few weeks later, the student newspaper at the University of North Carolina, the Daily Tar Heel, echoed Goldstein's plea, in a front-page editorial entitled, "Rape Is a Violent Crime." (The editorial in part responded to the filing of a Title IX complaint against UNC, which had alleged that the school's current system, which among other things prevents accused students from being represented by counsel, is nonetheless too tilted in favor of these same accused students.) The editors observed that while anywhere outside of campus walls rape is a serious crime carrying a lengthy prison sentence, "At UNC and colleges across the country, it is treated as an infraction. Something so fundamentally wrong demands a principled solution." Some of the paper's recommendations were unrealistic--the idea that the Title IX coordinator could serve as a neutral facilitator of facts, protecting the interest of the accused as well as the accuser, is hard to imagine--but in general the Daily Tar Heel was on target in arguing that universities needed to show "deference in the pursuit of justice to trained law enforcement."
It's worth reiterating why colleges are extraordinarily unsuited to investigating violent crime, and perhaps most especially sexual assault. Many, if not most, colleges have procedures that prevent accused students from having lawyers participate in the disciplinary tribunals. Accused students don't have access to medical experts (recall the significance of these experts in vindicating the falsely accused students in the Duke lacrosse case) that can be vital when the allegation is a crime without any witnesses. Colleges don't have subpoena power, and therefore must make judgments on limited evidence. And most colleges deny the accused a fundamental principle of Anglo-American due process--the right to publicly confront one's accuser--by requiring that the disciplinary proceedings occur in secret.
The result is a system wildly tilted against accused students, especially in a campus environment where some administrators and many faculty members are ideologically or pedagogically predisposed to disbelieve an accused student's claim of innocence regarding sexual assault claims. This combination of procedural and ideological bias was brilliantly explicated by James Taranto in his recent exposé of a flawed sexual assault proceeding at Auburn.
When pressed on the issue, academic defenders of the current system fall back on a combination of two lines of argument. First, they suggest that guidance from OCR has tied their hands--even as most elite schools have consistently gone beyond what OCR has demanded. In a 2001 document, OCR held that "a complainant may allege harassing conduct that constitutes both sex discrimination and possible criminal conduct," thereby seeming to require colleges to investigate such conduct. (That said, the guidance also made clear that in such instances, "police investigations or reports may be useful in terms of fact gathering.") And while the 2011 "Dear Colleague" letter ordered schools to lower the threshold for guilty findings, introduced double jeopardy by allowing accusers to appeal a not-guilty finding, and discouraged colleges from allowing accused students to cross-examine their accusers, even the current OCR didn't require many post-2011 "reforms" we have seen, such as eliminating the right of the accused student's attorney to cross-examine the accuser (Cornell), allowing guilty findings after non-unanimous votes (Stanford), formally giving accusers maximum control of the process (Yale), or dramatically limiting discovery (Swarthmore).
Second, advocates and student-life administrators claim that the purpose of the college disciplinary process is educational, not criminal, and therefore differing standards are appropriate. This explanation obviously applies for customary topics of college disciplinary processes, such as academic misconduct or petty misbehavior on campus or in dorms. Yet it makes no sense when dealing with serious crimes. (Imagine the laughter that would greet a college's claim that it seeks to "educate" students who attempt murder against trying to kill again.) Moreover, heightening the importance of schools making the correct finding, in 21st century America, a student's punishment for sexual assault exceeds mere expulsion from school: the college's decision almost certainly would hamper his future educational opportunities (what other colleges would want to admit a student whose former college branded him a rapist?) and close off employment prospects in any job that required formal background checks or even those such as politics, public policy, and some areas of the law that require voluntary disclosure of extensive biographical information.
Since the stated reasons for colleges not treating rape as a crime are illogical, it seems obvious that the real justifications lie elsewhere. And while the "Dear Colleague" letter has substantially weakened student due process rights, the controversy over its implementation has resulted in college administrators, perhaps unintentionally, giving some insight behind the crusade against due process.
What are these reasons for colleges not treating rape as a crime, as offered by administrators at some of the nation's leading universities?
Hostility to Due Process
Readers of The Shadow University, the book by Alan Charles Kors and Harvey Silverglate, co-founders of the Foundation for Individual Rights in Education (FIRE) know that college disciplinary processes routinely overrun the rights of students. (My favorite vignette from the book: MIT's changing its policies, which had forbidden students in the disciplinary process from hiring a lawyer but allowing them to have a relative accompany them, after Alan Dershowitz's nephew asked his uncle to represent him in the process.) Universities in general don't like to see outside counsel threaten their control, a problem that FIRE has continued to expose.
And so Brown vice president for campus life and student services Margaret Klawunn, defending the university's refusal to allow students accused of sexual assault to be represented by a lawyer in the school's disciplinary proceedings, remarked, "We don't want attorneys to start running the University process." Anyone who followed Brown's botched handling of the rape allegations against William McCormick would understand why the university would want to keep attorneys out: when the chief "neutral" witness (McCormick's residential advisor) had at the least an appearance of conflict of interest (friendly e-mails and meetings with the accuser's wealthy father), the process was unlikely to withstand outside scrutiny.
In October, Brown named Klawunn (whose academic specialty is gender studies, and who had taught courses at the school covering "feminist literary theory, popular American literature for young women, and the literature of women's diary and letter-writing") interim Dean of the College. Clearly, a hostility to due process is no impediment in career advancement for Ivy League administrators.
Redefining Sexual Assault
A more ideological reason for colleges not treating rape as a crime appeared at Yale, the first university targeted on this issue by the Obama-era OCR. In the aftermath of its negotiations with OCR, Yale retooled its sexual assault procedures, most notably by introducing the "informal complaint" mechanism, which gives accusers the right to file a claim of sexual assault on grounds of a "worry" and does not provide grounds for an accused student to introduce evidence of his innocence.
But Yale also quietly adopted what a report prepared by Deputy Provost for Health Affairs and Academic Integrity Stephanie Spangler conceded was "a more expansive definition of sexual assault." At Yale, but not in the city of New Haven, sexual assault is "the actual or threatened physical, sexual, verbal, emotional or economic abuse of an individual by someone with whom they have or have had an intimate relationship," including not merely sexual partners but also roommates. A university committed to claiming that sexual assault can constitute "economic abuse" of a roommate clearly has an incentive to keep sexual assault reports out of the criminal process, since no police department anywhere in the country would accept such a definition.
Ironically, this Newspeak had an unintended consequence for Yale this summer, when Spangler released her biannual campus sexual assault report. The document generated widespread condemnation from "activists" and feminist blogs who complained that Yale wasn't sufficiently punishing students who had engaged in "nonconsensual sex." The issue, it quickly became clear, wasn't inappropriate punishment but instead the (understandable) misunderstanding of outsiders as Yale used a commonly understood term--nonconsensual sex--to mean something quite different.
Making Convictions More Likely
In contrast to the Blackstone principle that "it is better that ten guilty persons escape than that one innocent suffer," universities have increasingly embraced the principle that it's better that innocent people suffer than one guilty escape--at least when the allegation is sexual assault. As Brown's Klawunn lamented, "Sexual assault complaints often lack sufficient evidence to prove guilt beyond a reasonable doubt." Sometimes, of course, that lack of "sufficient evidence" allows a guilty man to go free. But a lack of "sufficient evidence" can also be a sign that the allegation itself is unsubstantiated. And too many colleges appear to have no interest in designing procedures to discern between the two outcomes.
In fact, many of the most enthusiastic supporters of the "Dear Colleague" letter appear utterly disinterested in the danger of false findings of guilt. Allow Stanford law professor Michele Dauber to explain the final, and most pernicious, rationale behind not treating rape as a crime. Since the local prosecutor's office does "not tend to bring charges in college acquaintance rape cases," and rape prosecutions in her university's county are "extremely rare," universities need to weaken due process protections for the accused. The result will be more guilty findings--about which Dauber rejoiced. Indeed, this law professor(!) celebrated the university's decision to eliminate such "mock trial" like aspects as ensuring that an accused student has the right to cross-examine his accuser. To replace the "mock trial," Stanford instituted a system in which a student can be found guilty of sexual assault on a preponderance-of-evidence (50.01%) threshold, without even a unanimous vote from the disciplinary tribunal--whose members, as FIRE uncovered in 2011, are trained that an accused student presenting his defense logically is a sign of guilt.
For ideologues whose primary goal is not justice but more findings of guilt, the campus system--with its lower threshold for guilt and various procedures designed to make it hard for an accused student to have a robust defense--is far superior to the criminal justice system. In this Alice-in-Wonderland conception of justice, the error made by the accuser of Caleb Warner (the student that the University of North Dakota found guilty, based on a preponderance of evidence, of sexual assault, even as the local police charged his accuser with filing a false police report) was going to police at all. Far better that she had confined her efforts to the university system, which avoids troubling things like cross-examination and discovery rules, so as to facilitate a "turnaround" (to borrow Dauber's phrasing) of increasing campus findings of guilt.
How will all this end? Perhaps the OCR's most recent overreach--a now-repudiated attempt to impose a de facto nationwide speech code--will cause judges to look skeptically on the agency's actions in one of the many Title IX cases (Vassar, St. Joe's, Xavier) currently working their way through federal courts. Perhaps high-profile coverage of the issue, such as Taranto's article about Auburn, will cause policymakers to start engaging in needed oversight of OCR and of public universities. Perhaps, though far less likely, a university somewhere in the country will stand up to OCR and adjudicate the issue in court.
KC Johnson, co-author of the definitive book on the Duke lacrosse case, "Until Proven Innocent," teaches at Brooklyn College and the City University of New York Graduate Center. One of his courses is on Youth Public Policy & the Law.