Tag Archives: evidence

Wendy Murphy Comes to the University of Virginia

The Office of Civil Rights’ mandated procedures for
investigating sexual assault are tilted heavily against the accused party. The
institution can
hire “neutral fact-finders” who produce the equivalent of a
grand jury presentment, deny the accused an advisor of his choice, add
witnesses that the accused student does not request, forbid the students from
cross-examining his witnesses, and judge the student according to a 50.00001
percent preponderance of evidence standard, an approach that mocks even the
pretense of due process.

It is remarkable, then, that one such accused student at
the University of Virginia was exonerated of the charges brought against him.
Unfortunately, what happened next was unsurprising.

The accuser hired an outside attorney–none other than controversial
victims’ rights lawyer Wendy Murphy–and filed a complaint with the Office of
Civil Rights. Murphy’s argument, as expressed to c-ville.com, comes close to
saying that a failure to convict amounts to an OCR violation. “The preponderance standard is simple,”
she told the newspaper. “When her accusations are deemed credible, and his
denials are not described with the same glowing terminology, she wins.” But
under the UVA system, the investigators (serving as the equivalent of a grand
jury) have the authority to deem an accuser’s claims “credible.”
For the
OCR even to consider such an absurd claim would be highly problematic.

The second disturbing element of this story comes from
the article itself. Penned by Graelyn Brashear, the article often appears as
little more than a press release for Murphy. Even though the accuser publicly
reiterated her allegations through a posting on Murphy’s facebook page–which
Brashear notes, was “widely
circulated among students,” c-ville.com kept her identity secret.

Nor does Brashear
inform her readers about what the UVA procedure actually entails. Beyond
referencing the shift toward a preponderance of evidence standard (which the
reporter comes close to celebrating, describing universities lacking the
standard as “holdout schools,” even as she notes concerns from FIRE and the
AAUP), Brashear doesn’t reveal that accused students can’t have an attorney
cross-examining witnesses, that the university considers the equivalent of a
grand jury or the police as “neutral,” or that the university is willing to
abandon even a circumscribed right to cross examine regarding some witness
statements. Given that most people outside the academy (indeed, most academics)
have little knowledge about the details of campus due process, it seems likely
that readers of Brashear’s article came away with the belief that the campus
judicial system resembles not the Kafka-like system envisioned by the OCR but
instead the Law and Order rules that
most citizens at least somewhat understand.

Most troubling, here’s how
Brashear described Murphy: “Wendy Murphy, an adjunct professor at the New
England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand. ‘I’m an activist with my feet in the
courts,’ she said. Her battle cry is blunt: ‘The law is designed to facilitate
and perpetuate violence against women and children,’ she said.”

Virginia is a member of the ACC, and, of course, Murphy
has some experience with handling allegations of sexual assault at an ACC
school. In the Duke lacrosse case, the ubiquitous media commentator repeatedly
made false statements of fact about the case (nearly 20 of them in 2006 alone)
coupled with myriad unsubstantiated claims and bizarre interpretations of law.
These statements weren’t made in secret–and they received widespread attention,
including from the American Journalism
Review
.

Yet Brashear mentions none of this, and instead treats
Murphy as a wholly credible figure. Imagine, for instance, if the intro
paragraph had at least acknowledged that Murphy had a record of playing fast
and loose with the truth on claims of campus sexual assault: “Wendy Murphy, an adjunct professor at the
New England School of Law and a frequent media commentator on issues of women’s
rights, has a reputation as a firebrand, although in at least one high-profile
campus matter, the Duke lacrosse case, she repeatedly misstated both factual
items and questions of law, always in such a way that favored the accuser in
that case.”

Such a portrayal, it seems,
isn’t what cville.com thinks its readers should receive.

Campus Due Process, Obama-Style

In this
week’s Chronicle of Higher Education, Joseph Cohn, director of policy at
FIRE, summarizes
the due process implications of a letter sent to colleges and universities last
April by the Department of Education’s Office for Civil Rights. As was widely
reported at the time, the letter instructs schools to adopt the lowest standard
of proof in our judicial system, preponderance of the evidence, in cases of
alleged sexual misconduct, ranging from harassment to rape.

During
the Bush Administration, Cohn notes, colleges enjoyed greater flexibility in
their proceedings, and the Office of Civil Rights accepted a wide variety of
standards among institutions.  The new directive, signed by Obama
appointee Russlyn Ali, allows little latitude.
 

Supporters
have defended the lower standard of proof by citing civil lawsuits that also
rely on a preponderance outcome, but the elements of civil lawsuits that are
missing from campus hearings are worth listing:

  • Civil
    trials have impartial, legally-trained judges; campus hearings often rely on “a
    panel of faculty, students, and/or administrators.”
  • In civil
    cases, either party may demand a jury; in campus hearings, the option isn’t
    available.
  • In civil
    cases, parties have right to counsel; in campus hearings, “parties to these
    hearings frequently have no right to counsel.”
  • In campus hearings, “rules of evidence don’t apply,” and witnesses “are usually
    not placed under oath.”

According
to Cohn, of 198 colleges ranked by U.S. News & World Report, 30
institutions so far have complied.

This is a
travesty of due process, but it pleases advocacy groups such as the Women’s
Sports Foundation, the Association of Title IX Administrators, and Wendy Murphy
(remember the Duke Lacrosse Scandal?), all of whom signed a
statement
in support of the letter. One particular sentence in the support
statement indicates clearly why the new standard is a dangerous one.  It
reads: “The preponderance standard is the only equitable choice under Title IX
as it avoids the presumption, inherent in a higher standard of proof, that the
word of a victim is less weighty than the word of an accused individual’s
denial.”

Note the
acceptance of victim status for one party before the respective “words” have
even been given.  In some cases, of course, there will be physical
evidence of assault, but in other cases, we have precisely a contest of words
alone.  With the stakes so high for the accused, should the accuser’s
accusation be as “weighty” as the accused’s denial?  Yes, according to
these groups and the Obama Administration, and they dress it up in a language
of “equity.”

Senate Bill Would Further Undermine Due Process on Campus

From OpenMarket.org

Historically, most colleges used a “clear and convincing” evidence standard in student and faculty discipline cases, to safeguard due process. As Nicholas Trott Long noted in 1985 in the Journal of College and University Law, “Courts, universities, and student defendants all seem to agree that the appropriate standard  of proof in student disciplinary cases is one of ‘clear and convincing’ evidence.” (Long, The Standard of Proof in Student Disciplinary Cases, 12 J.C. & U.L. 71 (1985).)

But in recent years, this due process safeguard has come under attack,…

Continue reading Senate Bill Would Further Undermine Due Process on Campus

The Star Chamber Comes to a Campus Near You

As Harvey Silverglate and Kyle Smeallie pointed out in Minding The Campus, the recent letter from the Obama Administration’s Department of Education’s Office for Civil Rights outlines a policy shift that represents perhaps the gravest threat to civil liberties on campus in a generation.

The letter’s provisions would be gravely damaging even in its narrowest possible scope, by confining its tenets to how campuses respond to allegations of sexual assault. In the Chronicle, Christina Hoff Sommers notes that the OCR’s demand that universities use a “preponderance of evidence” standard in adjudicating all campus allegations of sexual assault “advocates procedures that are unjust to men.”

Campus disciplinary procedures already are heavily tilted in favor of the accuser and against the due process rights of the accused; the OCR’s new policy of requiring campuses to independently investigate all allegations of sexual assault (rather than, as should be done, have such matters handled by the criminal justice system) threatens to turn college campuses into Star Chambers.

Continue reading The Star Chamber Comes to a Campus Near You