Tag Archives: OCR

An Illegal Program OCR Won’t Strike Down

In my research as a labor economist, I discovered that the Lawton program, offering aid exclusively to minority and disadvantaged students at the University of Wisconsin-Madison, is operating illegally—Title VI of the 1964 Civil Rights Act prohibits Federal aid going to members of certain racial and ethnic groups, and not others, as Lawton does. That was 11 years ago, and the Office of Civil Rights of the Department of Education still hasn’t managed to rule on my formal complaints.

Not that there is any doubt about the Lawton Undergraduate Minority Retention Grants. Eligibility continues to be restricted to minority groups specified as “African American, Hispanic American, Native American, South East Asians.”

To my periodic inquiries about the delay in ruling, OCR offers several stock responses.  It claims in a February 2009 letter that my complaints “involve highly complex legal issues.” OCR claims in that same letter it “is proceeding as expeditiously as possible.” In an October 2013 letter OCR refers again to the “complexity of the issues involved.”

Anyone wanting to inquire about the status of my complaints or any other unresolved complaints will be frustrated by OCR’s record-keeping practices. Based on a recent FOIA request for a chronological listing of all Title VI complaints filed against post-secondary institutions, I discovered that OCR no longer lists the names of institutions whose long-standing complaints have not been resolved. I could identify my complaints only because I knew their docket numbers and the dates they were filed.

The cards seem to be stacked against any quick ruling on my complaints. I suspect UW is trying to find some way to rationalize its continuing discrimination under the Lawton Program. At the same time, I suspect OCR is trying to find some way to avoid ruling that the UW is violating Title VI. The likely reason: concern that doing so would jeopardize similar racially-exclusive scholarship programs at other colleges and universities.

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.

Yale’s New Low and the Sad Saga of Wendy Murphy

Few figures involved in the Duke lacrosse case behaved more disgracefully than Wendy Murphy, an adjunct professor at the New England School of Law. A  frequent TV commentator on the case, she  earned a reputation for defending Mike Nifong’s prosecution through myriad errors of fact, misstatements of the law, and deeply offensive statements such as her betting that “one or more of the players was, you know, molested or something as a child.” To Murphy, there are no false accusers of rape–so as soon as an accusation is made, a “victim” exists. The presumption of innocence, she has maintained, is no more than a presumption that the “victim” isn’t telling the truth.

That bizarre conception of due process is right at home at Yale. The university’s troubling new policies toward sexual assault allegations reached public attention through the New York Times‘s attempt to smear former Yale quarterback Patrick Witt, who was caught up in the university’s Kafka-like “informal complaint” system. (In this procedure, designed to give the accuser maximum control of how the process plays out, the accused student doesn’t even have the right to present evidence of his actual innocence, much less cross-examine the accuser or have legal representation.)

The Witt affair turned out to be the tip of the iceberg regarding due process–an internal report revealed that the “informal complaint” policy allowed Yale to set up a monitoring program for at least one faculty member without even telling him he’s under investigation. The allegation of sexual harassment alone was sufficient for the finding of guilt.

Now these sorts of arrangements will be the norm. Yale has entered into a consent decree with the Office of Civil Rights, ensuring the “use of the preponderance of evidence standard in determining whether sexual misconduct occurred”; promising an informal complaint procedure in the future in which no accuser has to face cross-examination from the person she accused; and creating a double jeopardy system in which the rare accuser who doesn’t get her way at the lower level can appeal a not-guilty finding.  So it’s almost fitting to see the commentator renowned for denigrating due process and the university that celebrated its own denigration of due process paired up in a race to the bottom.

The triggering event was a Title IX lawsuit–generated, Murphy claimed, by the Yale-OCR settlement–filed by her and another attorney, John Williams, on behalf Susan Burhans, who formerly served as security education coordinator for the Yale Police Department. The filing’s basic thesis: over the course of a decade, Burhans recommended a variety of policies which, if adopted, would have ensured that the OCR had no grounds for acting against Yale. But instead of Yale accepting her wise counsel, Burhans was fired.

 

A Connecticut Superior Court already appears to have dismissed Burhans’s case, for reasons that aren’t hard to discern, given some of the claims the lawsuit offers. Murphy and her co-counsel maintain that Burhans discovered that Yale accusers were “revictimized during sexual assault grievance procedures,” and demanded that her supervisors institute new procedures. (The complaint doesn’t reveal what these new procedures were.)

 

Burhans “experienced an increasing number of colleagues avoiding her,” which Murphy and her co-counsel suggest constitutes evidence that Yale violated Title IX. And the complaint wants to hold Yale liable for posting a $129,000 job in the security department requiring “qualifications Burhans did not possess.” Finally, the complaint reveals that Burhans applied for around 50 other jobs at Yale and didn’t get any. Again, it’s not clear how this is evidence of a Title IX violation.

 

Continue reading Yale’s New Low and the Sad Saga of Wendy Murphy

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.”

The OCR’s Newest Target: Xavier University

The Cincinnati
Enquirer
reports that Education Department’s Office of Civil Rights (OCR)
has entered into its latest Title IX-related agreement with Xavier University.
Unlike the
OCR’s agreement with Yale
, which used a manufactured controversy to weaken
the due process rights of the university’s students, at least at Xavier the OCR
involved itself only in response to actual complaints of sexual assault. But,
as with Yale, the outcome revealed a basic lack of respect for the presumption
of innocence and fair play for all students.

The heart of the case at Xavier, according
to the Enquirer
: “Two female
Xavier students charged that a male student was twice allowed to remain on
campus after being found responsible for sexual assaults, and a third charged
that XU did not treat her fairly in her sexual harassment and stalking claim.”

In fact, the male student, Sean Marron, was acquitted of four counts of sexual assault in a bench trial. The trial records were sealed,
but
according
to the court reporter
, the judge ruled as he did “due to inconsistencies” in the accusers’ stories and “a lack of
evidence.” In the aftermath, Xavier dismissed two student life officials, on
grounds that they mishandled the female students’ on-campus complaints, before
the students filed criminal complaints against Marron.

Continue reading The OCR’s Newest Target: Xavier University

More Advice on Railroading Males in Sex Cases

Not one college or university that I know of has resisted
the notorious “Dear Colleague” letter’ urging a lowering of the burden of proof
in campus sexual assault cases. Reasons for this timidity include the fact that
powerful forces within the academy fully support the attack on due process by
the Department of Education’s Office of Civil Rights, the source of the letter.

A reminder of which way the campus winds are blowing
comes in an email from the Association of Title IX Administrators–yes, the  Title IX bureaucracy is bloated enough to
evolve an actual association like this. In its “Tip of the Week,” the
Association urges colleges and universities to modify their campus appeals
processes in such a way that would almost certainly render successful appeals
less likely. Specifically, the group wants to exclude from the appeals process
the college president–or, indeed, “any
high-ranking university official.” Why? Because “deciding appeals makes [top
administrators] a target personally for a lawsuit. Why serve that prize to the
plaintiff’s attorneys on a silver platter?”

Of course, if the goal is preventing lawsuits,
a better approach would be setting up a procedure that respects the rights of
all parties, including the accused student, recognizing that the truth is more
likely to emerge from a fair process in which all sides’ rights are respected.
But the Association has little interest in that sort of arrangement.

Continue reading More Advice on Railroading Males in Sex Cases

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

Yale Abandons All Pretense of Due Process

Yale and the Department of Education’s Office of Civil Rights recently announced a settlement of a Title IX complaint brought by several Yale students alleging a “hostile environment” on the campus toward women. (The idea that any contemporary Ivy League campus is hostile to women is nothing short of preposterous.) The settlement’s terms included the following binding commitments from Yale:

Continue reading Yale Abandons All Pretense of Due Process

More on the Rape Accusation at Brown

Marcella (Beth) Dresdale was the former Brown student who accused a classmate of sexual harassment and then (a week later) changed the accusation to one of rape. The classmate, William McCormick, quickly left Brown, but eventually sued both Dresdale and her father, Richard Dresdale, a wealthy Brown donor. Before the Dresdales agreed to an out-of-court settlement (reportedly after McCormick had been offered $1.05 million), the lawsuit brought to light Richard Dresdale’s aggressive involvement in the Brown procedure that minimally investigated his daughter’s claims.

Continue reading More on the Rape Accusation at Brown

Student Editor Details the Corruption at Brown

As university after university follows the OCR’s mandate to lower the threshold for evaluating campus sexual assault claims–and thereby to increase the likelihood of convictions from false accusations–it’s worth keeping in mind cases in which even the pre-“Dear Colleague” procedure broke down. Caleb Warner’s is one such case; William McCormick’s is another.

Continue reading Student Editor Details the Corruption at Brown

The Kafka-like “Dear Colleague” Letter Wins at Cornell

Another day, another two-tier student disciplinary policy–this time at Cornell. The Cornell Daily Sun reports that the university has modified its sexual assault policy, in response to pressure from the Russlynn Ali-led Office of Civil Rights in the Department of Education. As the Obama administration demanded, the key change comes in a lowering of the burden of proof to a preponderance of the evidence (50.1 percent) when Cornell students allege sexual assault. For all other disciplinary matters, however, the university will continue to employ a standard of clear and convincing evidence, which, Cornell’s disciplinary guidelines helpfully inform students (p. 29),”is a higher standard than the civil law’s more-likely-than-not standard.” In a demonstration of cowardice, not one member of the University Assembly voted against the rule change.

Continue reading The Kafka-like “Dear Colleague” Letter Wins at Cornell

The Notorious “Dear Colleague” Letter in Action

Inside Higher Ed brings interesting news today about how the infamous “Dear Colleague” letter from the Obama education department–which requires all sexual assault and harassment cases to be judged by the lowest possible burden of proof, a preponderance of the evidence–has affected one university campus. In response to the letter’s mandate, the University of North Carolina has reconfigured its disciplinary procedures, in part due to a desperate hope to retain some semblance of due process for accused students.

Continue reading The Notorious “Dear Colleague” Letter in Action

Confusion over Anti-Asian Discrimination

At the request of the unidentified Asian-American student who filed discrimination complaints against Harvard and Princeton, the Department of Education’s Office of Civil Rights has ended its investigation.

The civil rights office had folded the complaint against Princeton … into a compliance review begun in 2008 of whether that university discriminates against Asian-Americans.

The allegations in the 2011 complaint “will no longer be considered as part of OCR’s existing compliance review involving Princeton,” said an Education Department spokesman, who declined to be identified, citing department policy.

Continue reading Confusion over Anti-Asian Discrimination

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

Star Chamber Provision on Campus Dropped

In April, the Department of Education’s Office for Civil Rights outlined a policy shift that represented perhaps the gravest threat to civil liberties on campus in a generation. Worse, Sen. Patrick Leahy inserted a provision in a draft of the Violence Against Women Reauthorization Act of 2011 that would have made the dubious new policy part of federal law. The provision required college students accused of sexual assault to be tried under a weak “preponderance of evidence” standard that would have made it almost impossible for many falsely accused students to clear their names.

Continue reading Star Chamber Provision on Campus Dropped

Sorry, Charlotte, I Only Wish I Were Wrong About Columbia

In her thoughtful and intelligent critique of my case against Columbia University, Charlotte Allen agrees with my basic concern when she writes that what’s wrong at Columbia is “the university’s continued support of professors who have turned their classrooms into bully pulpits for preaching religious and ethnic hatred.”  She disagrees, however, with whether OCR should (also) look into whether the departmental chair’s conduct has subjected at least one Jewish student to unlawful discrimination under Title VI of the Civil Rights Act of 1964.  Charlotte makes one strong point:  ironically enough, the chair’s advice may have been factually correct, in the sense that a reasonable Jewish student might be made to feel objectively offended or “uncomfortable” by what transpires in Prof. Massad’s classroom.  Since a prior internal investigation of Massad’s alleged anti-Semitism was dismissed by many observers as a “whitewash,” we will not know how right the departmental chair was absent a full, impartial investigation such as OCR could provide.  To say that the advisor may be right factually is not however to concede that she was correct legally or ethically.

Continue reading Sorry, Charlotte, I Only Wish I Were Wrong About Columbia

You’re Wrong about Columbia’s ‘Steering,’ Ken

I disagree with Kenneth L. Marcus’s post here approving the Education Department’s pending investigation of Columbia University for allegedly “steering” a Jewish student at Barnard College away from a course taught by Joseph Massad. While I’m in sympathy with Marcus’s efforts to show up Massad for the unreconstructed ideologue and tiresome non-scholar that he is, I’m dubious about the Education Department’s apparent aim of expanding the authority of its Office for Civil Rights into the terrain of student advising. Soon, I fear, we’ll be reading about Education Department probes involving female students supposedly “steered” into art history instead of engineering, and black students “steered” into black studies instead of business administration. Do we really want the federal government–not to mention litigation-hungry lawyers–looking over the shoulders of college professors who have taken on advising chores as they attempt to fit undergraduate students with courses that match their interests and abilities?

Continue reading You’re Wrong about Columbia’s ‘Steering,’ Ken

“Steering” Orthodox Jews Away from Massad at Columbia

The U.S. Department of Education’s Office for Civil Rights has just opened a new investigation into anti-Semitism at Columbia University.  At this author’s urging, OCR is looking into whether a Jewish Barnard student was unlawfully “steered” away from a course taught by controversial Columbia Professor Joseph MassadMassad has been accused of anti-Semitism before.  This case though has a twist.  The basic allegation is that a Barnard student was unlawfully “steered” away from Massad’s class by a departmental chair, Dr. Rachel McDermott, who urged her to study ancient Israel instead.  The chair insisted that the student, who is an Orthodox Jew, would be made to feel uncomfortable if she took Prof. Massad’s class.

Continue reading “Steering” Orthodox Jews Away from Massad at Columbia

A Great Article on a Disastrous Act of Federal Meddling

Sandy Hingston has captured, in an article of extraordinary importance, the fruits of political correctness in the Dept of Education (the insistence that colleges make it almost impossible for men to be found innocent of charges of sexual misbehavior), the infantilization of women; the grotesque joining of careerism, cynicism, and ideological blinders to actual justice in what is now the sexual assault racket; the painful vulnerability of every male on our campuses; the contempt for due process and fairness in emerging campus judicial systems; and the certain human tragedies that will follow in the wake of this.

We have criminal courts, of course, but they sometimes actually find innocent males innocent, so that will not do. And there, on the Main Line, sits the huckster Brett Sokolow, getting rich by trivializing actual rape and conflating it with voluntary sex or even touching on a few drinks, often initiated by the women themselves. I once asked the long-ago Vice-Provost for University Life at Penn, Jim Bishop, when this stuff—now mandated by the federal government—was first coming in at the University.

Continue reading A Great Article on a Disastrous Act of Federal Meddling

Stanford: Guilty Even If Innocent

At Stanford, according to the “alternative misconduct review process” guidelines offered on the university’s website, a student accused of sexual misconduct doesn’t have the right to cross-examine his accuser–or any other witnesses in his case. He cannot offer exculpatory evidence on his behalf, but can only “request” that the university’s assigned “Investigator contact individuals who are witnesses to an event.” (Even then, the Investigator “is not obligated to meet with every individual proffered by the responding student.”) If acquitted by the campus judicial process, his accuser can appeal the acquittal. Even if the acquittal is upheld on appeal, he can still face what Stanford euphemistically terms “non-disciplinary actions,” including “removal from a position of trust or removing a student from housing.”

And, as a result of the recent OCR Title IX missive, he’s lost what was virtually his only due-process protection–that a conviction will result only from “beyond a reasonable doubt.” Instead, he now will face expulsion if found guilty according to a “preponderance of the evidence” (50.1 percent) standard.

What right does the accused student possess? “To be offered reasonable protection from . . . malicious prosecution.” Thanks to FIRE, we now know that even this meager right is meaningless.

FIRE has obtained some of the material that the university uses to train the student jurors (dubbed “reviewers”) who decide the fate of accused students at Stanford. The FIRE website provides excerpts from one such item, Why Does He Do That: Inside the Minds of Angry and Controlling Men. The Library Journal review notes that the book’s author, Lundy Bancroft, has wildly claimed that at least one out of three American women will be a victim of violence by a husband or boyfriend at some point in her life.”

Continue reading Stanford: Guilty Even If Innocent

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

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?

A Brown Cover-Up

Duke—which is defending a civil suit filed by most of the unindicted lacrosse players and their families—isn’t the only university being sued, in part, for bowing to politically correct winds on campus. Brown, a prominent donor, and the donor’s daughter are facing a civil suit, for allegedly conspiring to drive out of school a former Brown student after the donor’s daughter accused him of sexual assault.
The basic facts of the case: In 2006, William McCormick was a Brown freshman and member of the university’s wrestling team. Very early in the academic year, he seemingly had a series of unpleasant encounters with another first-year student, Marcela Dresdale, who lived in his dorm. Dresdale complained to her dorm RA about McCormick’s untoward advances, and the RA reached out to the Brown administration. Then, six days later, Dresdale for the first time asserted that a week before, and after several discussions with the RA in which she had made no such claim, McCormick had raped her.
Sexual assault policies of most universities are wildly tilted in favor the accuser. But Marcela Dresdale had another advantage—her father, Richard Dresdale, is a Brown alumnus of some influence, as well as a major Democratic donor. (Full disclosure: I have donated to two candidates on Dresdale’s list—Obama and Tom Allen, a 2008 Senate nominee in my home state of Maine—though my donations didn’t quite reach Dresdale’s six-figure level.) Internal Brown documents obtained by the AP indicated that Richard Dresdale was in contact with Brown administrators, and McCormick was immediately suspended and sent back to his home in Wisconsin. Meanwhile, the person who served as McCormick’s de facto advocate, an assistant wrestling coach, wasn’t allowed to see any evidence of the alleged crime. The three sides eventually worked out an agreement: McCormick would withdraw from Brown and not return to Providence until the accuser graduated; Dresdale wouldn’t file criminal charges; and Brown would terminate its investigation—an inquiry in which McCormick’s advocate wasn’t allowed to see what evidence, if any, Brown actually possessed.

Continue reading A Brown Cover-Up