Tag Archives: Dear Colleague

The Hollow Nature of the “Dear Colleague” Threat

An interesting
article
by Sara Ganim noted that with the conclusion of the Jerry Sandusky
trial, attention will shift to civil suits against Penn State and criminal
actions against former and current Penn State employees. Probably the most
explosive recent report came from NBC, which revealed existence of e-mails
among former top university officials (including the former president) on whether
not reporting Sandusky to police would be the “humane” thing to do. Before
apologizing under pressure from an alumni group, one Penn State trustee
expressed concern that the e-mails could suggest a cover-up.

Continue reading The Hollow Nature of the “Dear Colleague” Threat

Let’s Not Turn Satire and Criticism into Discriminatory Harassment

FIRE
(the Foundation for Individual Rights in Education) has attracted
important support for its open letter asking the Department of Education
to define harassment
narrowly enough to allow genuinely free speech on campus. Many colleges
and universities ban expression that might be considered “offensive” or
cause “embarrassment” or “ridicule.” The January 6 letter, sent to
Russlyn Ali, assistant secretary for civil rights
in the Education Department, has been signed by, among others, the
National Association of Scholars, the Alliance Defense Fund Center for
Academic Freedom, Feminists for Free Expression and ACTA, the American
Council of Trustees and Alumni.

A Black Eye for Brown In a Controversial Rape Case

I’ve written before of the peculiar case of Brown and
Marcella Dresdale
. In 2006, Dresdale accused another Brown freshman, William
McCormick, of sexual assault. But she didn’t go the local police, and she never
filed charges. Instead, she went to the Brown administration–over which, it
turned out, her father Richard, a major Brown donor, exercised considerable
influence. After a prosecution-friendly process in which McCormick’s only
advocate was an assistant wrestling coach, McCormick accepted what amounted to
a plea bargain, and agreed to leave Brown. The university never formally
investigated Dresdale’s charges.

There matters might have ended, but McCormick and his family
decided to file a federal suit against both Dresdales and Brown. Their basic
claim: that Brown had railroaded McCormick to accommodate the demands not of
justice but of a major donor.

The case meandered its way through various courts and judges
until this summer, but recently a district court had upheld McCormick’s
discovery demands–related to what sort of communication between the Dresdales
and Brown administrators about the case. It seems that the Dresdales really
didn’t want McCormick and his attorneys to get access to this material. On Wednesday,
the Dresdales and the McCormicks announced that they had reached an
out-of-court settlement.

As is customary in such matters, terms weren’t released,
though the fact that the development came so close on the heels of the
discovery order gives a good sense of which side prevailed. The settlement
also, ironically, proved the McCormicks’ claims that Brown effectively acted
not as an institution of higher learning but as an agent of the Dresdales. The
settlement’s terms preclude the McCormicks not only from suing the Dresdales
but also from suing Brown–even though Brown wasn’t officially a party to the
settlement negotiations. It appears that Richard Dresdale was willing to offer
more money to shield the school from the sunlight of discovery. Brown’s spokesperson,
however, issued an Orwellian statement about how, regardless of the apparent
cover-up and Brown’s fierce attempts to prevent the McCormicks from getting
access to data about the school’s decisionmaking process, “the university stood ready at all times during this
litigation to prove in court that it had acted appropriately and in accordance
with applicable laws, policies and procedures.”

A final point, on coverage of the case. Kudos to Bloomberg
News
, whose article on the settlement references the Dresdales by name.
Contrast that approach with the Laura Crimaldi of the Associated Press, whose
article never uses the Dresdales’ name
and instead explains that a settlement
was reached between McCormick, his family, and “his
accuser and her father
.” (This shielding policy even prevents the AP
from referencing the name of the case, McCormick
v. Dresdale.
) Again: Marcella Dresdale never filed charges. She appears
never to have gone to a hospital for a rape examination. Her father paid out an
undisclosed sum of money to prevent documents regarding Brown’s handling of the
case from coming to light. And yet the AP believes that she’s still entitled to
the cloak of anonymity?

Brown Shows How to Skew a Case and Skewer the Accused

Tuesday’s Brown Daily Herald brings an interesting column on one of Brown University’s best known–and most questionable–disciplinary proceedings: the expulsion of a student, William McCormick, after an allegation of rape by the daughter of a major donor.

I’ve written about McCormick’s case before–in what resembled a coerced plea bargain, he was dismissed from Brown after another Brown student, Marcella Dresdale, accused him of sexually assaulting her. (Dresdale never filed a report with police; McCormick always maintained his innocence and is suing the university.) The affair at the very least has raised the appearance that McCormick left Brown not because he had done anything wrong but because the university bowed to the demands of Dresdale’s father, who has funded both the Dresdale Family Medical Scholarship and a medical conference room.

Continue reading Brown Shows How to Skew a Case and Skewer the Accused

Sexual Assault on Campus–Is It Exaggerated?

rape.jpg

Earlier this month, shortly after the announcement of a sexual harassment investigation targeting Yale University, the Department of Education’s Office of Civil Rights issued a “Dear Colleague Letter” to colleges on the handling of sexual violence cases.  On the same day, April 4, Vice President Joe Biden kicked off a nationwide “awareness campaign” on schools’ obligations toward victims in a speech at the University of New Hampshire.  But will this campaign truly help victims of sexual assault – or is it likely to trample on the civil rights of students accused of such offenses, and promote more panic and paranoia on campuses?

Some of the recommendations in the OCR letter are innocuous enough, such as providing a grievance procedure for students to file complaints of sexual violence and an equal opportunity for both sides in such cases to present witnesses.  Others, however, are more troubling; indeed, former Education Department attorney Hans Bader concludes that the document “undermines due process and accuracy” in the quest for more convictions.  While these are convictions under campus disciplinary proceedings, not in criminal court, they are still likely to have grave consequences: not only expulsion from school, but the stigma of having committed a felonious act even if it is not prosecuted under criminal law.
 
Perhaps the most problematic of the OCR’s recommendations is that sexual assault complaints should be adjudicated under the standard of “preponderance of the evidence,” rather than the “clear and convincing evidence” standard currently used by many universities.  (In response, Stanford and Yale are already amending their procedural rules.)  As Bader puts it, “‘Preponderance of the evidence’ means that if a school thinks there is as little as a 51 percent chance that the accused is guilty, the accused must still be disciplined.”  In his view, this requirement is based on a fundamental misunderstanding of federal law: In Title IX sex discrimination cases, the “preponderance of the evidence” standard is meant to apply to an institution accused of violating the plaintiff’s rights, not to another individual accused of an offense.

Continue reading Sexual Assault on Campus–Is It Exaggerated?

Washington Invents an Anti-Bullying Law


image001111.jpgThere’s no federal law against bullying or homophobia.  So the Department of Education recently decided to invent one.  On October 26, it sent a “Dear Colleague” letter to the nation’s school districts arguing that many forms of homophobia and bullying violate federal laws against sexual harassment and discrimination.  But those laws only ban discrimination based on sex or race – not sexual orientation, or bullying in general.  The letter from the Education Department’s Office for Civil Rights twisted those laws, interpreting them so broadly as to cover not only bullying, but also a vast range of constitutionally protected speech, as well as conduct that the Supreme Court has held does not constitute harassment.  In so doing, it menaced academic freedom and student privacy rights, and thumbed its nose at the federal courts.

The letter successfully left the false impression that federal law already bans bullying and anti-gay harassment.  For example, a sympathetic news story reported that  “the Department of Education issued guidance to all school officials in October 2010, reminding them that federal law requires schools to take action against bullying–including . . . sexual harassment of LGBT students.”  The letter was part of a high-profile Obama Administration campaign against bullying, that recently culminated  in “a high-visibility conference on bullying prevention March 10, with the president and first lady” and the introduction by Administration allies of “several LGBT-inclusive bills designed to address bullying of students.”

But in reality, there is no federal ban on bullying, and no federal statute prohibiting sexual orientation discrimination.  Bills banning anti-gay discrimination, such as the Employment Non-Discrimination Act, have yet to pass Congress.  Existing sexual harassment laws generally do not cover harassment aimed at gays based on their sexual orientation, as opposed to their gender – even if such harassment is sexual in nature.  As the Supreme Court emphasized in its 1998 Oncale decision, “workplace harassment” is not illegal sexual harassment “merely because the words used have sexual content”; instead, victims “must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted discrimination ‘because of'” a victim’s “sex,” such that “members of one sex are” treated worse than “the other sex.”  Thus, federal courts have usually dismissed sexual harassment lawsuits brought by gay employees over bullying and foul language, in cases like Higgins v. New Balance (1999).

Harassment is legally defined even more narrowly in schools than workplaces.  In the workplace, harassment need only be severe or pervasive enough to create a hostile environment in order to be illegal.  A single, severe physical act can occasionally be enough for a lawsuit.

Continue reading Washington Invents an Anti-Bullying Law

Massad Got Tenure (Don’t Tell Anyone)

Fourteen Columbia professors are protesting the university’s apparent decision to award tenure to Joseph A. Massad, a controversial anti-Israel professor of Arab studies.
The professors are from the schools of law, business and public health. They expressed their concern in a five-page letter to the incoming Provost, Claude M. Steele. The letter asserts that the university’s decision to guarantee Massad a life-time teaching post “appears to have violated” Columbia’s own rules, thus raising profound questions about the university’s academic integrity. The university’s administration, weirdly, still refuses to confirm or deny that Massad won tenure, but yesterday the Middle East and Asian Languages and Cultures department let the cat out of the bag—it announced a beginning-of-term party next week congratulating Massad on gaining tenure.
This week Provost Steele belatedly issued a polite, noncommittal response. In a four-paragraph “Dear Colleagues” letter to the fourteen professors, Steele, a former Stanford psychologist, says he would “welcome” a meeting to discuss their concerns. After he learns more about Columbia’s tenure process, Steele writes, he may “want to make some changes in our procedures.” But nowhere does he state that Massad has, in fact, been awarded tenure. Nor does he acknowledge that the professors raise deeply troubling concerns, that if true, go to the heart of what many regard as the core of a university’s integrity.

Continue reading Massad Got Tenure (Don’t Tell Anyone)