For 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.
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.