No Due Process, Thanks—This Is a Campus

Here are two troubling developments regarding campus due process from the Upper Midwest:

Inside Higher Ed featured remarks from Susan Riseling, chief of police at the University of Wisconsin-Madison, regarding the intersection between campus police and Title IX responsibilities. Riseling told attendees at the International Association of College Law Enforcement Administrators conference that police chiefs should require all officers to read Jon Krakauer’s Missoula to better understand why victims distrust the system—even though only one of the accusers profiled by Krakauer was unequivocally a victim.

Then Riseling told a story of how the Wisconsin police had identified a student rapist on the basis of what he said in his Title IX hearing. (He had interviewed with the police, since the accuser apparently also filed a criminal complaint, but wasn’t forthcoming.) Police then subpoenaed the hearing records. “It’s Title IX, not Miranda,” Riseling boasted. “Use what you can.”

This remark revealed far more than Riseling intended. The chief offered a rare explicit celebration of what too often is implicit: lack of civil liberties protections is a desired aspect of college inquiries. The “advantage” of the disciplinary hearing process, it seems, is that accused students have minimal due process protections, and—since sexual assault is, of course, a crime—law enforcement can then use student disciplinary proceedings to obtain information that they could not, under the Constitution, in a normal police investigation. Civil libertarians might hope that Riseling will be rebuked for her cavalier attitude toward due process, especially in Madison, a city known for its defense of civil liberties. But I wouldn’t hold my breath.

Meanwhile, next door in Minnesota, the University of Minnesota has become the latest school to adopt an “affirmative consent” standard. The Star-Tribune interviewed FIRE’s Robert Shibley about how affirmative consent creates a presumption of guilt, and I echo his remarks. Two other points worth mentioning:

First, Minnesota provost Karen Hanson dismissed Shibley’s concerns on grounds that “we’ve still got tons of due process about these issues”—including the right to appeal. Really? The university’s appeal procedure is severely limited, and the “due process” that Hanson celebrates explicitly states that the appeals process “must respect the credibility determinations of the hearing body and must not substitute his or her judgment for the hearing body.” Other examples of the “tons of due process” that Minnesota supplies include: (1) the possibility of suspension based solely on an uninvestigated accusation; (2) have the right to cross-examine the accuser limited by “reasonable procedures to address concerns for safety or well-being”; and (3) describing the accuser (before the adjudication has finished) as a “victim/survivor.” “Tons of due process” indeed.

Second, the Star-Tribune article features interviews with numerous Minnesota students welcoming the policy changes. This hostility to basic civil liberties among the student body reflects a similar pattern that Stuart Taylor and I noticed at UVA after the Rolling Stone fiasco, and raises serious questions about the future attitude toward due process as these students become more active citizens in the near future.

10 thoughts on “No Due Process, Thanks—This Is a Campus”

  1. UW-Madison, where the Riesling wretch is Police Chief, is probably one of the country’s most glaring examples of a “police state” university.

    Her police are a menace not only to students, but to every resident of Dane County, WI as well! They frequently exceed their jurisdictional limits, by making traffic stops beyond campus and otherwise harassing citizens who are not affiliated with UW!

    Having no real violent crime issues to deal with on campus, her university police have time on their hands to “enforce” laws which do not exist, and to improperly issue misdemeanor charges for such “serious” crimes as being in buildings after very ambiguously posted “closing hours.

    Interestingly enough, UWPD has never been able to solve any of the (fortunately few) murders which have ever taken place on its campus!

    Under the guise of “academic freedom”. UW-Madison has been able to usurp broad legislative, judiciary, and executive powers, without having to ben bothered by such “annoyances” as due process.

  2. The student who participated in (and may have helped to lead) the attack on the phi psi fraternity house at UVa was interviewed by the Washington Times. “The student who claimed to participate in the attack said he had no regrets despite the fact that the accuracy of Jackie’s story in Rolling Stone has come under significant doubt, including the name of the fraternity where the alleged attack occurred. Asked whether he felt at all bad about attacking the wrong fraternity, he showed no remorse and justified the attack on the broader woes of ‘social injustice.'” IMO our students need to hear as much about civil liberties, the presumption of innocence, the rule of law, and related matters as they do about campus sexual assault.

    1. If that’s the same student who was interviewed before, the impression I got was that he was a sociopath who was simply using “social justice” as an excuse for destructive behavior engaged in for personal thrills. Probably not really reachable, but fortunately I suspect that particular type is fairly uncommon.

      1. You may well be right, and perhaps my comment was unintentionally off topic. However, I am still concerned that our students are getting a very one-sided message, one that will not help them become good stewards of civil liberties in the future.

  3. Also from the “Inside Higher Ed” article: “All of us who have been in officer-involved shootings know that an officer is given one if not two cycles of sleeping before being interviewed,” Riseling said. “We do that for cops. It’s the same type of psychology for sexual ­assault victims.”

    This is a false comparison. In the case of a police-involved shooting, the policeman is a potential perpetrator, not a victim. Additionally, an accuser of sexual assault can wait years, speaking to many advisors before making the accusation. The trauma in such cases is in no way comparable.

  4. Regarding the Wisconsin matter, at what point do the hearing folk become considered “agents of the police”? If a criminal complaint has already been filed and they work for the same university, why wouldn’t Maranda apply?

  5. KC,

    I’ve been mentioning this for over 20 years. Over 20 years ago I went through a kangaroo court in my college false allegation. It wasn’t as bad then, but several things happened that made it tilted against me – and specifically to your point:

    1) Directly to your point (so slightly out of order) I was REQUIRED to show up and give testimony, without an attorney speaking for me (at the time they allowed him to sit next to me silently) – for which statements could have been used against me should this gone to a criminal court. Now it’s just codified across the country.

    2) Everyone who investigated the allegation, sat on the hearing board, or who worked in the Student Affairs office had been through heavy feminist indoctrination. It was a vetting process whereby those that investigated, sat in judgement, or who oversaw the process had one mindset – the feminist “women don’t lie” mindset.

    3) For instance : EVERYTHING pointed to my guilt.
    If I was angry it was because my “right to have sex” was being questioned (almost no one used the word priviledge back then).
    If I was scared it was because I was “caught”, not because my future was on the line.
    If I was discombobulated / confused as to how this could have happened it was because I could not wrap my mind around the fact I had committed a crime etc etc.

    In fact, one woman on my hearing board (a school nurse – there to add “medical expertise”) straight up told me that my calm demeanor and logical way of expressing myself showed my calculating & cold nature and made her think I was guilty.

    I asked her if I was angry would that point to my guilt – she nodded. I asked her if I was scared would that point to my guilt – she nodded. Then I asked her what expressions of personality or emotion would indicate innocence and she snapped off that I was not there to question HER.

    (realizing this was a lost cause – my attorney told me as much before we walked in – by the way they were handling my case) I then asked her : What would a woman who was lying about rape show or how would she act if she was a false accuser – and that set Ms. Holy-Avenger-Nurse off – smoldering angry eyes of “how dare you” and a refusal to give me an answer.

    My point: They stack the deck with “true believers” or at least those who toe the line – the whole “investigative” process is there to validate the accuser.

    4) The school appoints an investigator who is of the mindset mentioned above – and when you (read: me – I did this) try to run your own investigation to get testimony that might help you, you are threatened with being charged with “intimidating witnesses” and (the college equivalent of) “obstruction of justice”.

    Meaning – don’t you dare find exculpatory evidence to bring forward – just trust us – we’re “experts”

    And, KC, this was 20+ years ago – as I read here, and other sites, it has gotten much much worse.

  6. The comment from Riseling is extremely troubling. One, maybe students should be warned about this possibility before they are questioned. Two, it further erodes the argument that campuses may use a lower standard of evidence, because what happens in these adjudications is less consequential.

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