Below is my column this morning in USA Today on a campaign by the Obama Administration to pressure colleges and universities to reduce due process protections for students accused of sexual harassment and sexual violence. I have previously written a letter to my own university opposing some of these specific changes, though (like many schools) George Washington appears to be yielding to the pressure. I understand the concern of the Administration and the need to protect victims in this difficult process. We are all committed to maintaining a protective environment for both students and faculty. However, there are other ways to offer such protections without stripping away core due process protections in my view. My greatest concern is with the sexual violence cases because these adjudications will have a lifelong impact on the students (or faculty members) as well as consequences for collateral criminal proceedings. The column below is slightly expanded with material cut for space in the newspaper version.
Six years ago, prosecutors finally dropped rape charges against former Duke University lacrosse players accused of attacking a stripper. Perhaps the greatest offense against the players was not the false accusation by Crystal Mangum, but the assumption by Duke that the students and anyone associated with them were guilty. In the wake of this scandal, many schools learned a hard lesson from Duke’s bad publicity and sought to protect students and faculty from a future rush to judgment. However, school efforts to reinforce due process protections have run into opposition from an unexpected source: the Obama administration.
Last year, universities received a seemingly friendly “Dear Colleague” letter from the administration demanding that schools actually reduce due process protections in disciplinary hearings for accused students and faculty in sexual misconduct cases. If they did not, the letter warned, they could lose federal funding and face discrimination charges discrimination. The helpful “colleague” on the other side of the letter was Russlynn Ali, then assistant secretary for civil rights at the Department of Education. She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.”
Ali just resigned, providing an opening for the Obama administration to reconsider. That’s overdue because the interpretation of due process as a form of discrimination has shaken the academic community, which is deeply divided on whether to yield to the overt threats. It is a Faustian bargain for academics: Either strip students and faculty of basic due process protections or be declared discriminatory.
In the past, many schools have required significant evidence to find students or faculty guilty, often a “clear preponderance” or “clear and convincing evidence.” These standards require less than the criminal “beyond the reasonable doubt” standard but still a 75% or 80% certainty of guilt. The administration, however, demands that schools adopt the lowest evidentiary standard short of a presumption of guilt — “preponderance of the evidence,” just slightly above a 50-50 determination.
Because many of these cases involve the classic “he-said-she-said” situation, they come to the university as an even split based on opposing testimony. Add in the fact that many of these cases involve drinking, and the “preponderance” standard becomes a recipe for injustice. Even the slightest evidence can dictate the result and tends to favor conviction.
While this low standard is used in some civil cases, the accused is generally afforded other protections that the Obama administration directive strips from the accused. For instance, the directive discourages schools from allowing a student or faculty member to question the accuser. And schools have seized on that. Last month, a Georgia college student was expelled after rape allegations without the opportunity to confront the accuser or even, the student alleges, know the names of other witnesses in the case. After a judge halted the expulsion, the parties reached an “undisclosed resolution.”
The Supreme Court has insisted in criminal cases that the right to confront the accuser must be honored even when a court believes that the victim’s testimony is highly credible. The court stated in 2004 that “dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because the defendant is obviously guilty.” Yet, the administration insists that this right “may be traumatic or intimidating (for the victim), thereby possibly escalating or perpetuating a hostile environment.”
Adding to the unfairness is the fact that many schools like George Washington, where I teach, do not even allow for legal representation of students in these proceedings. Likewise, most do not account for potential criminal prosecutions. University investigations can undermine the rights of criminal defendants by forcing them into a process without other constitutional protections that the accused have in criminal court, such as the right to remain silent. Thus, evidence that would be viewed as improper, if produced by prosecutors in criminal court, can be admitted if generated first by a university.
Like other schools, George Washington does not even define the offense of “sexual violence.” Thus, a student can be convicted of an undefined offense under the lowest standard of proof without either confrontation or active counsel. Worse yet, the lesser offense of “sexual harassment” is defined as including the undefined “sexual violence” — adding a mind-numbing circularity.
Equally disturbing is the common rationale cited by those demanding these changes: money. As recently stated in an article by the respected Chronicle of Higher Education, the lowering of the burden of proof “[f]irst . . . protects colleges from being held liable for violating Title IX, the law that bars sexual discrimination at institutions receiving federal money.” This common rationale puts money squarely before the merits in the priority for discussion.
The Obama administration has created the perfect Potemkin village — a legal façade with the outward appearance of a due process without its substance. Weighting the system to guarantee more convictions is not combating sexual violence or harassment. It is achieving a statistical success rather than the harder process of assuring justice for both alleged victims and the accused. Students are not statistics and deserve more than the equivalent of a coin toss with two lives in the balance.
Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.
Published December 6, 2012
OS, This is not a criminal trial. They are using Title IX to work out grievances and try to provide safer campuses.
What mespo said.
What mespo, said and reaffirming what OS and Gene said….
This is a slippery slope if there ever was one, as Mespo points out above. Often there are no witnesses, and I have worked on enough cases of false allegations to be surprised at nothing any more. On top of that, there are clever predators who make sure their own tracks are covered in case there are allegations. This is a legal and ethical minefield.
Several years ago, a first grader was suspended in North Carolina because the teacher saw him give a little girl a peck on the cheek. He was accused (by the teacher) of sexual harassment. The little girl was not consulted on what she thought of it.
http://www.titleix.info/resources/Legal-Cases/Colorado-Lawsuit-Alleged-Rape-Football-Recruiting-Party.aspx
I should have added that the suspension of the crew team was later overturned by the administration, but not without the school being truly embarrassed by public reaction to its OVERREACTION.
http://inthecac.com/2012/05/03/tufts-crew-team-suspended-for-check-out-our-cox-spring-fling-t-shirts/
Another example of how the slightest slight–real or imagined–can end up staining one’s reputation. I see both sides of this, but due process is the law of the land and should not be given up.
There is a reference,brief, in the article that this person Ali whatshername quit. Why? Over this issue? Who replaced her? When? What do we expect from newguy/gal? How high up in the “Obama Administration” is this person who has now quit? Did someone higher u in the Administration push her to quit?
The election is over. Having Obama in bed with the bedwetters is a bit much here.
“What does a student need to prove to hold a school liable for damages for sexual harassment and assault under Title IX?
When students sue their schools under Title IX to get monetary damages for pain and suffering resulting from sexual harassment, they must prove that school officials actually knew about the harassment and were deliberately indifferent to it and that the harassment was so severe, pervasive, and objectively offensive that it limited the student’s educational opportunities or benefits. When a student-plaintiff seeks to hold a school liable for monetary damages for its response to a sexual assault, the student-plaintiff must prove that the school’s response, or lack thereof, was unreasonable in light of known circumstances (see Davis v. Monroe County Board of Education). According to the decision in Kelly v. Yale University, Civ.A. 3:01-CV-1591, 2003 WL 1563424 (D. Conn. 2003), strict adherence to school policies does not guarantee the school immunity under Title IX.
When a student-plaintiff seeks to hold a school liable for failing to prevent sexual assault or for fostering a sexually hostile environment, he or she must prove that the school had actual notice of the harassment or of a substantial risk of sexual harassment. Some courts have required actual notice of a specific risk (e.g., prior complaints about a specific individual or prior threat directed toward a specific student), while other courts have required only actual notice of a general risk (e.g., complaints about an athletic team or fraternity rather than a specific individual).
What can the U.S. Department of Education do?
The U.S. Department of Education Office of Civil Rights can find a school in violation of Title IX for sexual harassment and assault. OCR has issued a policy guidance that explains a school’s responsibilities under Title IX to recognize and effectively respond to sexual harassment of students. A student may file an administrative complaint with OCR under Title IX. OCR will investigate the complaint to determine whether the school violated Title IX.” American Association of University Women website
Having defended a few of these cases, I can say the schools can do quite a bit to prevent these “he said-she said” situations from occurring in the first place. As JT says, most sexual misconduct cases are fueled by alcohol and there is much a school can do to stop colleges from becoming relentless Octoberfests. The first step is alcohol education for incoming freshmen with an emphasis on the lowering of inhibitions the drug produces. Second, the schools can simply ban the use of alcohol on their grounds and in the dorms. Since the legal drinking age is 18 in most states this shouldn’t be much of a problem since at many schools upperclassmen no longer live in dorms. Third, the schools can institute a comprehensive program of sex education and the law for incoming freshmen. While today’s kids are all too familiar with the allure of sex, most have very little idea as to the consequences of pursuing unwanted sexual advances. Finally, the schools can institute a reasonable system of disciplinary actions to enforce its standards of conduct and publicize it along with the punishments (which few do except in the never-read-until-it’s-too-late university manual). I’m not sure it has to encompass all the due process protections that JT advocates ( it is not a criminal case, after all, and one has no right to attend any university) but the right to be represented seems fundamental as is the right to confront the evidence against them. i think a clear and convincing standard of proof fits the bill as does insuring confidentiality of the proceeding.
These are difficult cases to decide but there are some genuine psychopaths out there preying on young women and there are some young women motivated by shame or offended feelings to make false allegations. Deciphering between the two is hard to do, but it’s part of the job of the school and it would seem a good blueprint to use is the system that’s served us well in the past.
http://www.aclu.org/title-ix-gender-equity-education Title IX has been the law since 1972.
http://www.aclu.org/files/pdfs/womensrights/titleixandsexualassaultknowyourrightsandyourcollege%27sresponsibilities.pdf ACLU explains your rights under Title IX if you have been sexually assaulted on campus. Some schools such as GWU may address campus rape but there are others that don’t particularly when the rape was committed by a member of an athletic team.
Frankly.
You follow the rules at the fear of reprisal…..you change the rules when you can’t win with the rules that are in place…..been done many times….. Maybe this is an argument for returning to the days of gender separate campus’s….. If no means no…. Even if you’re in bed and doing it….. After a drunken binge….. Even more support for separation…. There are points that each needs to take responsibility for there own actions….. And not scream rape….
QUOTE “She explained that the reduction of protections for students was essential for preserving education as “the great equalizer in America.””
Since WHEN did schools get more police powers than the police!?!?
And HOW does taking away rights, ever make this country better???
I guess they want to drag out the National Guard and maybe shoot some more students, like Kent State & Jackson. Or maybe have them bayoneted like New Mexico students…(& news people).
That went over well with the American public….
http://www.npr.org/blogs/thetwo-way/2011/04/04/135109643/colleges-universities-told-to-do-more-to-prevent-sexual-assaults
“The guidance from the department of education does not create new laws or regulations, but tries to clarify issues that college administrators said had caused confusion and, according to NPR’s investigation, often left victims of sexual violence feeling they got little protection.
The NPR investigation found that colleges almost never expel men who are found responsible for sexual assault and that often, as a result, it is the victim who drops out of school. The guidance explains the responsibility of schools under Title IX, a civil rights law best known for requiring equality in men’s and women’s sports, but which also says schools have a responsibility to end sexual harassment, including sexual assault.” NPR
Bettykath – I don’t recall any due process for students when I was in school. The teacher or principal ‘knew’ who was guilty & took appropriate action. No reviews & no appeal. Luckily for me I was a “good” kid (meaning my mom was on the PTA and I never got caught) so naturally I was never guilty like those “bad” kids who were always guilty.
The root cause here is that people see examples of systems failing and automatically assume the system must be a failure and the solution is to replace the system. That seems logical unless you consider that the replacement will have its own unique failures. They may even be worse than the ones that caused the change in the first place. Instead each failure should be examined to see where it might have been prevented and that information feed back into the system.
There are plenty of examples of the current system failing victims but the answer is not to overturn the entire process and the presumption of innocence.
Due process is already out the door for elementary students in a couple of southern states.
http://truth-out.org/news/item/12993-corrections-corporation-of-america-used-in-drug-sweeps-of-public-school-students
http://readersupportednews.org/news-section2/340-187/14760-in-mississippi-kids-go-to-jail-for-being-late
“VP Biden on Campus Sexual Assault: “It’s Quite Simple. No Means No”
ABC News’ Karen Travers and Tahman Bradley report:
Vice President Biden and Secretary of Education Arne Duncan spoke at the University of New Hampshire yesterday to bring attention to the high rates of sexual assault and violence committed against women on college campuses across the country.
The Obama Administration also released new guidance to help schools at all levels better understand their obligations under federal civil rights laws to prevent and respond to sexual assault on campus.
“Rape is rape is rape, and the sooner universities make that clear, the sooner we’ll begin to make progress on campuses,” Vice President Biden said.
Biden told an audience of about 600 that when it comes to sexual abuse, it is quite simple: “No means no.”
“No means no, if you’re drunk or you’re sober,” he said. No means no if you’re in bed in a dorm or on the street, no means no even if you said yes at first and you changed your mind.”
First they came for….. Then no one was left….
Words and meanings edited out, forgotten or just trampled….
Obama….. Protecting civil liberties since….. Bush left office….. One banana, two banana……or is that banana one and banana two…. (TV show for the uninformed)….,
This policy reeks….. And to think Nifong might still have a job if this policy was still in place…..