Cornell Law Professors File Brief Denouncing Cornell’s Denial of Due Process In Sexual Assault Cases

Cornell_University_seal.svgFor a number of years, I have been writing about the lack of due process for our students and faculty in cases of alleged sexual harassment or assault in colleges or universities. (For prior columns, click here and here and here). This problem grew far worse under the Obama Administration when  Russlynn Ali, then assistant secretary for civil rights at the Department of Education, issued a “Dear Colleague” letter that effectively forced schools to strip away basic due process protections from internal proceedings.  Various faculties objected, though they were largely ignored by administrators who feared losing federal funds or appearing “soft” on sexual harassment claims.  Now,  23 Cornell Law School law professors have signed a letter denouncing such failures in a recent case.  Unfortunately, some 41 law professors at Cornell opted not to join in the effort.

According to The Cornell Sun, the controversy began with a sophomore accused of sexual assault and being suspended for two years.  The allegations was that the woman was too intoxicated to consent to sex.  The male student sued Cornell and a judge halted the two-year suspension but Judge Eugene Faughnan of the New York State Supreme Court in Tompkins County ruled in favor of Cornell.

Here is a copy of the ruling.

That ruling was appealed to the Appellate Division of the State Supreme Court and the 23 Cornell professors filed an Amicus Brief in his favor.

One of the signatories discussed the case here.

The brief is all too familiar to those of us who have long complained about the lack of due process, including the refusal to allow the accused to question his accuser.

Here is the Motion for Leave to File an Amicus Brief (pdf.).

It is a terrific brief and includes the following:

 

…Cornell’s Title IX procedures apply to all students at Cornell, including those law students whom we teach and mentor, and who serve as our teaching and research assistants; some of us also teach undergraduate students. Accordingly, on behalf of our students, as well as all students attending the University, we have an interest in ensuring that Cornell’s procedures are interpreted properly and applied fairly and faithfully. And, as is explained below, we believe that in this case, a Cornell disciplinary hearing panel failed to comply with an important procedural safeguard clearly set out in Cornell’s Title IX policy – the right of an accused student to have a disciplinary hearing panel conduct inquiry of his accuser about proper topics that he proposed ‒ and that the Supreme Court erred in its interpretation of this feature of Cornell’s policy. This violation of Cornell’s procedures may recur without action by this Court, thus harming our students in the future.

Further, it is in our interest that the academic institution to which we have devoted much of our careers be committed to fair process, that it comply with its own procedures, and that its reputation not be undermined by its deviation from fair procedures.[fn omitted]

Finally, in our scholarship, teaching, clinical work, and service, we are devoted to the rule of law, to truth-seeking, and to fundamental fairness. These commitments, along with our expertise, cause us concern about the federal government’s mandates to universities and colleges in Title IX matters, as well as their implementation in this and other cases. We question whether the required processes promote accurate results and whether they are fair to both complainants and respondents. We offer our accumulated knowledge and experience in the hope that it may be of use to the Court….

This portion of the proposed brief reflects the key prodecural problem at the hearing:

On April 17, 2017, when Roe testified at the hearing, the hearing panel did not ask Roe any of Doe’s proposed questions (either in the form he requested or in any other form) concerning Roe’s plans for the party, her recent breakup with her boyfriend, or her inconsistent statements. Indeed, it asked Roe no questions at all on these topics. R:1498-1514.

When Roe completed her hearing testimony, Doe was permitted to submit additional questions and topics for Roe under a provision providing that “[a]t the hearing, the parties . . . have an opportunity to propose reasonable additional questions and topics.” R:1447. While doing so, Doe noted that many of his previously submitted questions had not been asked. He reiterated his request for this questioning and also proposed additional inquiry, including questions focused on inconsistencies between Roe’s earlier statements and her hearing testimony. R:1681. Cornell’s hearing panel refused to ask Roe any additional questions. R:1514….

Accordingly, our point is not that Cornell should have given Doe the right to full cross-examination that he would be entitled in a criminal proceeding. Rather, we stress that the alternative to traditional cross-examination that Cornell’s procedures promised to Doe was crucial, and that the procedures he was promised should be interpreted in light of both the importance of those procedures to the accurate determination of the facts and also the public discussion and debate that was occurring when those procedures were adopted. In essence, by its Policy 6.4, Cornell promised to ask questions of the accuser in exchange for denying the accused the right to cross-examine, but Cornell broke its promise here.

As I have stated before, universities caved to the threat of losing millions in federal funds and sacrificed the rights of our students. The result is perfectly Robespierrean. Being strong on due process does not mean being soft on sexual harassment.  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.

29 thoughts on “Cornell Law Professors File Brief Denouncing Cornell’s Denial of Due Process In Sexual Assault Cases

  1. Here’s a novel thought. The next sexual harassment or rape case that arises should be immediately referred to the Ithaca PD. All Title 9 apparatchiks could then been fired. More money left to pay the top-of-the-line trough feeders. Sounds like Win-Win to me.

    • Latest case here resulted in the police recommending two felonies and a gross misdemeanor to the county prosecutor’s office. Nothing was reported about a suspension but previous cases have resulted in summary suspension.

  2. Strike another from the list!

    This is getting easy. My kid is gonna have about five schools to choose from when college application time rolls around.

  3. That pesky “r” word appears over and over in this thread, as it should. Women must take responsibility for themselves. Period. Then if she wants to bring an assault charge, let it be in a court of law with a “beyond a reasonable doubt” standard, not in a university kangeroo court. Universities shouldn’t try these cases with a lower standard when someone’s entire life is at risk. What concerns me about university disciplinary proceedings without due process is it can be used as a retaliatory mechanism if a relationship doesn’t go right.

  4. I believe that universities should not try to replicate a court of law. That is not their purview. All accused students should be given due process.

    If there was a sexual assault, then it should have been handled by the police. They could have a policy that anyone currently undergoing a trial for sexual assault be suspended until the conclusion of trial. Anyone convicted of a sexual assault on or off campus could be expelled as a danger to other students. Otherwise, how is a university to play detective?

    Women are inherently weaker than most men, but they are not inherently more truthful. A woman is just as capable of lying as a many. That is why ever accusation, brought by anyone of any race, ethnicity, gender, sexual orientation, religion, political persuasion, or any other identifier, should always be investigated.

    I have also never understood the concept that if two people are too drunk to give consent, and they have sex, the man will be prosecuted for a sexual assault. If the woman was too drunk to make a good decision, why is the man automatically assumed to have been in control even if he was just as drunk? Why is he always treated like a stone cold sober man who deliberately spiked drinks to make his date inebriated to take advantage? If both parties are drunk, then I hold both parties equally responsible. Unless you were given some sort of drug without your knowledge, if you wake up with morning after regrets for something you chose to do, that’s on you. Alcohol lowers everyone’s inhibitions, male and female. If you don’t want to make a bad decision, then don’t go out and get sloppy drunk. Now, that is obviously different from the woman who is assaulted after she passed out.

    If women want equality then they should be treated equally with men in such cases.

    • If women want equality then they should be treated equally with men in such cases.

      See Joan Didion’s essay on the feminist discourse abroad ca. 1971, republished in The White Album In Didion’s rendering, it was largely a flight from adult responsibility. See also Helen Smith’s aphorism (which applies to feminist discourse but can apply to girl culture generally): “women have options; men have obligations”. It was never about abstract ‘equality’. To the extent that it concerned wage-earning families at all, the object was to deny any sort of masculine vocation, to deny the notion that a father has any prerogatives vis a vis his children (as opposed to being an extension of the mother’s objects), to deny that male accomplishments reflected skills and dispositions which were not equally available to men, and to deny that a wife and mother had any obligations bar to look after her children and otherwise execute her preferences felt in real-time. Much of that also applies vis a vis bourgeois families, with the additional complaint that the common ordering of family life and work life inhibited women from erecting and following professional-managerial careers. (Professional women ca. 1955 were largely spinsters).

  5. Universities and colleges are places of drunkenness and disorderly conduct. Lax norms of personal behavior are tolerated. The college rape “problem” is 99% caused by alcohol overconsumption, and the suspension of pre-frontal-cortex inhibitions. And, a major factor is the inability of females to take any responsibility for their drunk selves.

    • You could return to men’s and women’s dorms and curfews. Institutions won’t do that because that’s status – lowering in the peer culture of stuent-affairs apparatchiks.

      • Call me paranoid, but I think Institutions will not return to those norms, because they like having drunk, partying students. It tends to make them fail their classes, and then have to repeat classes and take 5 years to graduate instead of 3 1/2 or 4 years. And, that means MORE MONEY for the school!

        Squeeky Fromm
        Girl Reporter

        • You’re assuming that marginal revenue is exceeding marginal cost. You have these scandals at places like Duke and U Va. which are flush with applicants and well beyond the point where their fixed costs are so proportionately high that they’ll admit marginal students just for the revenue. Crucial vectors influencing institutional behavior are the schools ‘reputation’ and the morale of the tenured faculty. To many marginal students hanging around damages both (and will ultimately undermine revenue streams).

    • When you go off to college, you are a new adult. Part of becoming an adult is taking responsibility for yourself. Part of being responsible is to never get so drunk that you pass out and are helpless somewhere. Don’t drink and drive. Don’t go beyond tipsy and get so drunk that you sleep with someone you sincerely regret, the consequences of which could be disgust, illness, pregnancy, or a breakup. If you do get drunk and choose to have sex with someone and later regret it, blame your bad choices and not the other drunk person for accepting. Organize ahead of time with your friends and keep watch over each other in case one of you gets drunk and needs to be taken care of. Actions have consequences, which is another rite of passage people learn when they become adults.

      Drinking a bit to relax is far and away getting obliterated drunk.

      • When you go off to college, you are a new adult. Part of becoming an adult is taking responsibility for yourself.

        If that were the name of the game, they’d be working.

  6. Here’s a novel thought. Get the colleges out of the thing they are least suited to do — engage in the crime-solving business. Colleges can handle cheating on term papers and bogus dining hall passes but leave the real “he said-she said” criminal cases to a system developed hundreds of years ago to handle them. We’ve seen the incompetence of college administrators and even more sinister their actual prejudices against males. They feign the neutrality stance but we know from scads of papers and public statements, many simply hate males – especially white, heterosexual, athletic males. I’d sooner be tried by a Kafka-esque faux court than many of these social justice professors whose agenda includes most anything but justice. Resentment and envy are the stock in trade for this new breed of academics.

    Stay in your lane, Prof, and bore us with some gobbledygook, nonsensical, jargon-burdened writings on womyn’s or diaspora studies and leave the justice delivery to the professionals.

    • That makes perfect sense. The problem is that people who work outside the higher education subculture and can cut through the lies they tell each other have no influence over the internal dynamics of such institutions. The star chambers are the b****** child of the impulse the hollow men employed as college presidents and student affairs apparatchiks to avoid bad publicity at all costs and the arts-and-sciences faculty’s abiding incapacity to understand the difference between intelligence and expertise. Faculty are offended that non-faculty might ever evaluate faculty and see themselves at the apex of the professional-class food chain. They operate under the illusion they can actually do this and the dean of students and the president want them to in order that matters be swept under the rug. Students getting expelled from school seldom will make the paper. Criminal charges do.

  7. 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.

    Sabrina Rubin Erdely is not a higher ed apparatchik. Note, however, her assumptions about college students and how that influences what she finds plausible and implausible. Note the critical distance (or lack of it) her editors at Rolling Stone manifested. Recall Sabrina Rubin Erdely is a graduate of the University of Pennsylvania. Now recall the conduct of scores of faculty at Trinity College of Duke University back in 2006 and 2007 (as well as Richard Broadhead, various members of the administration, and the president of the Duke Board, Robert K. Steel). For a great many of our bourgeois, wide swaths of the student body have no human reality at all. If they’re injured without cause, it’s all good because they’re disgusting or inconsequential to begin with. These schools go out of their way to do stupid vicious stuff. You’re assuming decency on the part of decision-makers when it’s just not there. At the schools where it is there, you don’t see these star chambers and the “Dear Colleague” letter was forwarded to the GC’s office with instructions that they’re to figure out a way to round-file it.

  8. Empower trustees. They’ll likely remain as otiose as ever, but you can try.

    1. The number of trustees should be a function of the number of diplomas the institution has handed out over the previous 55 years. The function should be so constructed as to yield a manageable number, typically around 9. The minimum size of a board would be 5, except for the subsidiaries of dioceses and religious orders subject to episcopal governance.

    2. For public colleges and universities founded less that 12 years previous, the trustees should be appointed for standard terms by an executive (typically the governor) with the advice and consent of a conciliar body (typically the upper chamber of the legislature). For institutions founded more than 60 years previous, the board should be elected by alumni registered to vote in the state in question. For those of an age in between, some of the votes on the board would be accorded appointed members and some elected members, with the ratio of the latter to the former increasing over time.

    3. Private colleges and universities not granted a special dispensation would be founded with a self-regenerating board. Twelve years after the 1st student was admitted, the votes on the board would be partitioned, and one vote would go to elected members and six to self-regenerators. The ratio of the former to the latter would increase over time until, 60 years after the first student is admitted, the entire board would be elected. Again, the electorate would be alumni registered to vote in the state.

    4. Public community and technical colleges would from their inception be governed by trustees elected by the residents of a designated geographic catchment.

    5. Private junior colleges would be governed by self-regenerating boards of modest dimension.

    6. Schools granted special dispensations would be subsidiaries of extant institutions with a ready-made body of stakeholders. In some cases, the trustee would be a bishop (who might delegate this function to an appointed board), in some cases an abbot or religious superior, in some cases a crew elected by the members of a particular congregation, or the employees of a particular commercial company, or the members of a trade union or fraternal lodge. In these cases, the self-regenerating board is unknown.

    7. As implied, all schools are incorporated as discrete locally-chartered philanthropies. Commercial institutions and chains are unknown.

    8. Elections to all boards are held the 4th year of a quadrennial cycle (i.e. the year before a federal presidential election). Aspirant candidates pay a deposit to the Secretary of State or state board of elections and drop off a 600-word statement. The statements are assembled into a prospectus which is mailed to all voters. The state board would prepare ballots to be mailed out. The registered candidates would not be in a single stereotyped order on the ballot. Rather, as many stereotypes would be printed as candidates who registered, and each candidate would have an equal chance to to occupy a particular place on the bill. If 20 candidates were running, 5% of your electorate would get one stereotype in the mail, 5% another, 5% a third, and so on. You can construct such a ballot by picking slips the names of candidates out of a box and placing each slip on a daisy-wheel. You start at a particular point on the wheel and move counter-clockwise, constructing a stereotype with the candidates in that order. Rinse, repeat, 20x. The voter would be expected to rank-order his choices and then mail the ballot back to the state capital. The ballots would be tabulated centrally, making use of the Condorcet tabulation method.

    9. The tenure of all trustees shall be subject to principles of rotation-in-office: no one serves more than 14 years in any bloc of 16, nor runs for the position if they’re going to hit that wall mid-term.

    10. All trustees would have to swear an oath which emphasizes their responsibility for the integrity of the institutions academic programs.

    11. The trustees select the president and review as needed his preferred choices for his direct reports and their direct reports, over-ruling him in some cases.

    12. The trustees prescribe the institution’s budget (of which financial aid allocations are a component) and prescribe the disciplinary manuals applicable to students and employees. Also, no issues of bonds or commercial paper are undertaken without their express authorization. In addition, no schools are set up, no majors may be offered, and no subdepartmental concentrations within majors without the authorization of the trustees. Any such programs must be nominated and delineated in accordance with a controlled vocabulary incorporated into state law which defines permissible and impermissible subjects to offer. The trustees of any state institution shall in addition be required to petition for and obtain a nihil obstat from a supervisory commission of the state board of regents before offering a major, concentration, or post-baccalaureate program. State law would permit only coarse, conventional majors.

    I’m attempted to add that trustees should have beefies on retainer. A great many tenured faculty should be publicly caned once a year on principle.

  9. Students should not sign up for classes taught by those profs who refused to stand up for due process and cross examination. If the course is mandatory then the students should show up on day one with Tinker Black Arm Bands. You folks all recall the Tinker v. Des Moines School case? Or you folks know that Mary Beth Tinker is still out protesting on The Tinker Tour?
    If you don’t know about the Tinker case or the Tinker Tour then go on-line.

    Another thing students at this lame duck law school can do is fill paper bags with dog turds, place them o the steps outside the front door of the homes of the non compliant profs, set them on fire and ring the door bell. When the lame duck prof stomps out the fire he will get dog poop all over his legs and perhaps slide off his or her porch.

  10. As I have stated before, universities caved to the threat of losing millions in federal funds and sacrificed the rights of our students.

    No, the threat of loss of funds was a tool the let’s-do-this faction of the administration used against the hey-wait-a-minute faction. If the institution as a corporate personality hadn’t felt like caving in, the response to the ‘Dear Colleague’ letter would have been try-every-door noncompliance.

    We can end this sort of extortion by cutting off the flow of federal funds to everyone. State schools might get some disaster relief in odd circumstances as a component of the relief going to state and local government to rebuild public works. Schools would receive an indemnity if a faculty member one a temporary fellowship to work for a federal agency, in order to compensate them for the loss of his labor. And you’d have some scholarships for federal employees and veterans, which would go to any school with a convenient accredited program in a subject the employee had been assigned to study or which the veteran elected to study. That would exhaust the flow of funds from the federal government to higher education (service academies aside). As for student loans, they would be unsubsidized, under a more congenial set of bankruptcy rules for the debtor, and handed out by banks and finance companies at market rates. State and federal agencies would conduct their research in house and college and university research would be financed by philanthropies or by the occasional state bond issue.

  11. This is another example of privilege and the law. The rich can purchase the legal representation to get them off when it comes to just about any crime. An extreme but accomplished example being the ‘affluency’ argument. Common day to day examples exist in our government and oligarchy with the main offender, the President. Americans seem to respect and even honor the rags/go to jail for life to the riches/get off or do time in a jail with tennis courts, wallet making classes, etc. The most appropriate approach to the religion of wealth and power should be that the sentences for crimes would be enhanced when applied to those who represent the formula(s) of this country.

    Universities and colleges should never be able to conduct criminal investigations and make judgements. A rapist is a rapist is a rapist and should be jailed appropriately. A false accuser of rape should be sentenced to the same time.

    In Medieval Paris and other European cities the governments were typically split into three zones. In Paris the Sorbonne area was administered by the University leaders and laws-judgements-and sentences, including the death penalty, were locally and almost entirely uniquely in the power of those administrators. The commercial district, Les Halles-now the area around the Pompidou Center had its own like administration. The district centering around the Louvre or at that time the Royal Palace took care of the rest and had jurisdiction over the entire city when it came to pardons and other specific issues. In other words the different segments of society had their own laws, privileges, and lack thereof.

    How similar is America to the Middle Ages?

  12. Excellent article!

    The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all. Frederic Bastiat

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