The War on Due Process

KC Johnson

On August 21, 2012, Xavier University in Cincinnati, Ohio, announced that it had expelled Dez Wells, a star player for the school’s basketball team, for “a serious violation of Xavier’s code of student conduct.”1 It soon emerged that after a student had accused Wells of sexual assault, a university disciplinary board had deemed him culpable. There the story might have ended but for two people—Hamilton County prosecutor Joe Deters and Wells himself. Unusually for campus sexual assault cases, the accuser had also filed a complaint with police, prompting Deters’s office to investigate. “It wasn’t even close,” Deters told a local radio station, citing the lack of evidence. “We would never take anything like this to court.” The county prosecutor denounced Xavier’s “fundamentally unfair” actions and “seriously flawed” procedures, and urged the school to “revisit” the case. In an almost sneering reply, Xavier refused to cede “student conduct matters to the criminal justice system.” Given that it allowed hearsay testimony, the university continued, its disciplinary board “heard evidence that may or may not have been heard by the Grand Jury”—leaving the implication that perhaps Wells was a rapist after all.2

Wells then sued in federal court, alleging libel and gender discrimination under Title IX. Xavier undoubtedly expected a swift victory—courts, in general, have been reluctant to insert themselves into college disciplinary processes. Instead, U.S. District Court Judge Arthur Spiegel, a Jimmy Carter appointee to the Southern District of Ohio, upheld almost all of Wells’s lawsuit. Judge Spiegel conceded that normally “judicial and quasi-judicial proceedings are entitled to an absolute privilege, so as to encourage witnesses to speak the truth.” But in Wells’s case, the university disciplinary board “may have been in over its head,” thereby potentially rendering the entire process “invalid.”3 After the ruling, Xavier quickly settled with Wells, ensuring that his attorney would not depose members of the disciplinary panel.

The Wells case was the first of a series of state and federal court decisions siding with male college students who claimed their colleges had violated their due process rights. These moves somewhat depressingly demonstrated that in the current environment, accused students’ best chance for fair treatment often comes from federal courts, after their schools have already deemed them (incorrectly) as rapists.

The turning point in efforts to weaken due process protections for students accused of sexual assault came on April 4, 2011, when the U.S. Department of Education’s Office for Civil Rights (OCR) issued a document called the “Dear Colleague Letter.”4 But even before OCR acted, the situation on campuses had grown dire for those hoping for fair treatment of these claims. Ideologically, few jurisdictions in the country have been as inclined to presume guilt in sexual assault cases as the typical college campus. The Duke lacrosse case illustrates the point: In the days after Crystal Mangum made her (false) accusation, the campus was aflame with guilt-presuming protests (including one advocating the lacrosse captains’ castration) and denunciations of due process (including a statement from Prof. Houston Baker demanding the immediate expulsion of all white lacrosse players).5 Eighty-eight members of the faculty ultimately placed a full-page advertisement in the campus newspaper about what “happened” to Mangum—thanking the protesters “for not waiting” and committing themselves to continue their protests “regardless of the results of the police investigation.”6 Given the traditional academic fealty to dispassionate analysis of evidence, the contempt for due process on the part of the Group of 88 (as they were referred to on campus) might have seemed unfathomable. But upon closer inspection, a connection emerged between most of the group’s academic interests—a heavy emphasis on themes of race, class, and gender—and hasty assumption that Mangum was telling the truth. In an academy increasingly dominated by the race/class/gender trinity, which sees American society as hopelessly sexist and oppressive of women, a line of defense that often requires the accused student to cast doubt on a woman’s truthfulness or good judgment is unlikely to receive a fair hearing.7

Structurally, the traditional shortcomings in campus disciplinary processes have been particularly problematic regarding claims of sexual assault. Since the schools themselves lacked subpoena power, virtually all college disciplinary processes prohibited discovery—meaning that an accused student lacked access to potentially vital exculpatory information such as contemporaneous e-mails or text messages, or medical reports from the night of the incident. Also, the vast majority of universities prohibited attorneys from participating in the school disciplinary process, leaving the student, sometimes with the assistance of an ill-trained “advisor,” to analyze and present evidence, or to conduct examination and cross-examination.

Many universities went beyond these basic structural flaws. Swarthmore’s disciplinary code not only prevented an accused student from having access to a lawyer during the hearing, but prohibited an accused student from even mentioning his case to an attorney off-campus. Stanford trained members of its disciplinary panel to interpret as a sign of guilt an accused student acting “persuasive and logical.”8 Duke responded to the lacrosse case by affirming that a student could be deemed a rapist amidst a coupling characterized by “perceived power differentials” between the parties, thereby producing an “unintentional atmosphere of coercion.”9 Given the intellectual quality of the university’s students, the director of the Duke Women’s Center asked the campus community to “imagine the sex offenders we have here at Duke—cream of the crop.”10 (Under strong public pressure from alumni and civil libertarians, Duke quietly modified the policy a year later, dropping the wording about unintentional coercion. But the university retained vague language in the new policy implying that sexual intercourse while intoxicated could be construed as rape, and the current policy retains onerous restrictions on the rights of the accused, such as limitations on the ability to cross-examine the accuser, to access discovery material, and to be judged by a jury of the student’s peers.)

Into this environment came the federal government. OCR’s “Dear Colleague” letter contended that sexual assault on campus constituted a form of sexual harassment and therefore violated Title IX. (This decision amounted to a federal agency dramatically expanding enforcement of a nearly forty-year-old law.) OCR demanded that colleges lower the burden of proof in sexual assault cases to a “preponderance of evidence,” or 50.01 percent; the letter also required colleges to incorporate a double jeopardy principle by allowing accusers to appeal not-guilty findings. Finally, OCR “strongly” discouraged colleges from permitting an accused student to cross-examine his accuser, even though in many campus acquaintance rape cases the accuser is the only relevant witness.11 Each of these changes increased the likelihood of culpable findings in general, and of false convictions in particular.

Despite strong criticism from the Foundation for Individual Rights in Education and other civil liberties groups, OCR clung to the “Dear Colleague” letter provisions, which virtually all schools have now implemented. (Princeton, which modified its policy in September 2014, was among the final holdouts.)12 Indeed, in subsequent consent agreements with individual universities, OCR moved beyond the terms of the letter. The most ominous came in October 2013, with the State University of New York. Again citing Title IX, the consent agreement required SUNY to investigate allegations of sexual assault even when local law enforcement had concluded an allegation was false. The document also repeatedly referred to the accuser as the “victim,” implying that for OCR, a student filing a claim must be presumed truthful.13

In and of themselves, OCR’s changes would have had a deleterious effect on campus due process. But the “Dear Colleague” letter had a multiplier effect, as student life bureaucrats and sympathetic faculty members used the OCR mandate to adopt additional sweeping changes—almost always in ways that made it more likely that an accused student would be convicted—to campus sexual assault policies. Instead of resisting federal encroachment and standing up for their students’ rights, universities have willingly consented to the war on due process.

Cornell, for instance, stripped from students accused of sexual assault the right to an attorney participating in the proceedings and granted the sole right to ask the accuser questions to an “independent” investigator. (A Cornell administrator told the campus newspaper, “I find no evidence that an attorney in an adversarial system is more effective at discovering the truth than an independent investigator is.”)14 Yale established an “informal” system in which a student accused of sexual assault has virtually no right to introduce evidence of his innocence; the school also adopted a “more expansive definition of sexual assault,” which included “intimate partner violence” covering such matters as “economic abuse” of a student’s roommate.15 As part of its new Alternative Review Process (ARP), Stanford abandoned its requirement for the disciplinary committee to unanimously convict a student of sexual assault. Stanford law professor Michele Dauber gushed that the ARP replaced a “mock trial” model in which the accused could cross-examine his accuser, and as a result was preferable to the criminal justice system, which tends not “to bring charges in college acquaintance rape cases.”16 None of these provisions by Cornell, Yale, and Stanford were required by the “Dear Colleague” letter.

With pressure coming from Washington, D.C., in the form of the OCR mandate, and a strong anti-due process attitude on campus from ideologically-charged faculty and some quarters of the administration, a third component of the anti-due process coalition has emerged in the last two years. Beginning with two accusers at the University of North Carolina and eventually extending nationwide, self-styled student “activists” from dozens of schools have filed complaints with the OCR (which they have clearly recognized as sympathetic) alleging gender discrimination in the handling of their sexual assault complaints. These moves received fawning coverage from the New York Times, the Huffington Post, and BuzzFeed, where reporters Richard Pérez-Peña, Tyler Kingkade, and Katie Baker have functioned more as stenographers than as journalists.

The basis for these OCR complaints—that college procedures are so tilted against the accusers as to constitute gender discrimination under federal law—is difficult to credit. Consider, for instance, the situation at Occidental College, target of one of the complaints. At the time of the complaint in April 2013, Occidental’s sexual assault policy affirmed that “legal terms like ‘guilt,’ ‘innocence’ and ‘burdens of proof’ are not applicable.”17 Accused students could not have a lawyer represent them in the proceedings, and received no access to any of the evidence used against them until forty-eight hours before the hearing. Even if the accuser said yes to sexual intercourse, the accused student could still be deemed a rapist, since, according to Occidental guidelines, “‘Yes’ may not always mean, ‘Yes.’”18 (Occidental’s “Sexual Misconduct Policy (for Students)” does not reveal when “yes” does not mean “yes,” leaving accused students to guess.) Under what possible definition of gender discrimination could such a system be deemed biased against the accuser?

The OCR complaints have revealed two problems with campus culture, though not in the way that activists have hoped. First, even as dozens of accusers have publicly affirmed their belief they were sexually assaulted by turning to OCR, virtually no one among this group actually filed a criminal complaint against her alleged attacker. It’s true that sexual assault is an underreported crime, but a main reason for this problem—a fear of public exposure and being forced to relive a traumatic assault—obviously does not apply to individuals who not only publicly appeal to the federal government but in some instances have given numerous media interviews.

To offer an extreme example of accusers’ high tolerance of or desire for publicity, Columbia student Emma Sulkowicz, who filed a complaint with OCR in 2013, has taken to carrying a mattress around campus, in what she terms “performance art,” to illustrate the burden she has assumed as a victim. Yet this burden was not so severe as to prompt her to follow through with the New York City Police Department. (Sulkowicz was, however, willing to follow through with interviews with the New York Times, New York, the New York Daily News, the Huffington Post, Business Insider, the Columbia Spectator, and WCBS-TV in New York City.) The student Sulkowicz accused of sexual assault was found not culpable by Columbia—despite being prosecuted under a system that forbids accused students from having a lawyer in the hearing, prevents the accused from cross-examining his accuser or any other witness, and allows conviction if only two of the three panel members are 50.01 percent sure of the accuser’s veracity. None of the articles about Sulkowicz’s case show an attempt to obtain the not-culpable student’s side of the story.19

Sulkowicz and her fellow accusers appear to have internalized the principle articulated by figures like Stanford’s Dauber: Colleges should establish a parallel criminal justice system for sexual assault cases and only for sexual assault cases, with fewer due process protections for the accused and an increased likelihood of finding guilt. Margaret Klawunn, Brown’s vice president for campus life, justified the college role on the grounds that “sexual assault complaints often lack sufficient evidence to prove guilt beyond a reasonable doubt.”20 Of course, sometimes cases lack sufficient evidence to prove guilt because no crime ever occurred. In any event, colleges are poorly equipped to investigate, and then prosecute, serious criminal offenses. Imagine the absurdity of a college president, dean, or prominent law professor implying that students who are victims of attempted murder or felony assault should rely on the college disciplinary process to handle the problem.

The self-styled activists’ cases, meanwhile, suggest a second cultural problem—the inconsistent evaluation of the role played by alcohol in allegations of sexual assault. (Virtually all of these cases arise out of events in which one or both of the parties were drinking.) In the criminal justice system, the standard normally used is one of incapacitation. Increasingly, however, and under implicit pressure from OCR, the media, and some members of Congress, colleges have suggested that an intoxicated woman cannot give consent, creating a vague standard in which a student could be deemed a rapist if his accuser had a particularly low tolerance for alcohol. And lest this approach suggest that sex between two intoxicated students would leave both as rapists, Dean Sue Wasiolek of Duke captured the consensus. Testifying under oath in a hearing in Durham, North Carolina, Wasiolek explained that if both students are intoxicated, “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.”21 By asserting that Duke would treat an intoxicated male student (whom the school would automatically brand a rapist) radically differently from an identically intoxicated female student (whom the school would automatically brand a victim), Wasiolek unintentionally conceded that Duke practices gender discrimination and thus violates Title IX.

In this environment, chances for false convictions have dramatically increased. Brett Sokolow, president of the National Center for Higher Education Risk Management and a figure whose background would hardly be confused with that of an ardent defender of due process, confessed his concern after looking through several recent cases in which an accuser claimed sexual assault after a night of heavy drinking. “In a lot of these cases,” Sokolow admitted, “the campus is holding the male accountable in spite of the evidence—or lack thereof—because they think they are supposed to, and that doing so is what OCR wants.”22

A good example of Sokolow’s point occurred at DePauw University. On December 6, 2013, DePauw junior Ben King attended a fraternity party and, as often occurs with students who attend fraternity parties, consumed a considerable amount of alcohol. So too did his accuser, a freshman King met at the party. The two returned to his dorm room and had some type of sexual contact but not intercourse. King later claimed that the accuser had verbally consented.

More than a month afterward, King’s accuser filed a formal complaint with DePauw. (She never went to the local police.) There was no medical evidence that King had done anything wrong, nor could the accuser contradict King’s assertion that she had verbally consented to sexual contact. (She said she didn’t remember because she was intoxicated.) As a result, the sole issue in King’s disciplinary hearing revolved around whether the accuser was too intoxicated to give consent.

To resolve this question, the disciplinary panel heard from four students who attended the party and who had been suggested as possible witnesses by the accuser. Each of the four admitted to having been drunk at the party. Nonetheless, the panel asked each student—eight weeks after a party at which they themselves had been intoxicated—to rank the accuser’s level of intoxication on a scale of 1 to 10. The decisive witness ranked the accuser’s level of intoxication at 8, but then admitted, “Because I was intoxicated as well, I might have not known for sure.”23 The university discerned from this dubious testimony that the accuser could not have given consent, even though DePauw’s own policy suggested that a lack of consent could be triggered only by incapacitation, not intoxication. (None of the witnesses described the accuser as incapacitated.) This record was too much for U.S. District Court Judge William Lawrence, a George W. Bush appointee to the Southern District of Indiana, who issued a preliminary injunction barring King’s suspension. The public, Judge Lawrence reminded DePauw, had an interest in ensuring fairness to “both complainants and respondents,” not just to accusers.24

A system in which accused students must rely on federal lawsuits to undo procedurally dubious college disciplinary actions serves the interests of no one. Yet the problem is almost certain to get worse. The Obama administration’s task force, citing a dubious statistic that 20 percent of women are sexually assaulted while in college, has proposed a whole array of additional “reforms.” A bipartisan coalition of senators has introduced a bill that would—at the least—subtly pressure colleges to make more findings of culpability in sexual assault hearings. And OCR investigations of myriad individual universities remain active.

The current system is obviously unfair in its treatment of accused students. As the Student Law Press Center’s Adam Goldstein has observed, handling rape allegations through colleges alone means that, at most, actual rapists will be expelled from school, but remain free to rape again.25 At the other end of the spectrum, apologists dismiss concerns about falsely accused students on grounds that a false charge before a college tribunal does not lead to imprisonment. But it can eliminate the possibility of obtaining a college degree, and almost certainly forecloses any future job opportunity in a position that requires a background check—leaving the denial of due process as a life-altering event, given that the reason for expulsion or suspension remains part of a student’s permanent transcript.

Procedural protections not only safeguard the accused, but also the accuser: centuries of experience in the Anglo-American legal system has deemed due process the best way to arrive at the truth. In this respect, accusers are no better served than the accused by handling sexual assault cases through colleges rather than through the criminal justice process.

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