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.
UNC has decided to remove sexual assault cases from the jurisdiction of its Student Honor Court, on grounds that students can’t be sufficiently trained to fairly handle such cases. IHE quotes Ada Meloy, general counsel for the American Council on Education, noting that UNC’s shift in part reflects a broader concern from universities “about the change in the burden of proof dictated by the Dear Colleague letter.”
And while this move might seem like a victory for due process, quotes from UNC administrators paint a far more troubling picture. Melinda Manning, an assistant dean of students, celebrated the shift on grounds that the previous system discouraged “victims” (as opposed to accusers, at least in the article’s paraphrase) from coming forward, since the system was “requiring victims to be judged by a roomful of peers.” A jury of one’s peers, it seems, doesn’t reflect the approach of many student life administrators. Another Honor Court veteran points to the current system’s high burden of proof (beyond a reasonable doubt) as a negative.
Under the current system at UNC, if an accuser simply files a sexual assault claim through the university but doesn’t go to the police, the accused student has no right to outside counsel. “Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.” If the accuser has simultaneously filed a criminal charge, “the accused student may be accompanied to the hearing by a licensed attorney who may confer with the student during the hearing so long as the attorney does not address the hearing panel, those hearing the appeal, or other parties or witnesses, and so long as the attorney does not delay or disrupt the proceeding.” [emphasis added] And in either case, the right of the accused student to present evidence to clear his name is severely limited by a clause that prohibits presentation of evidence that “does not otherwise infringe the rights of other students.” This is the procedure that Dean Manning had considered unfairly tilted against the accuser.
Since the Student Honor Court retains jurisdiction over all other disciplinary issues, the new UNC policy creates a two-tier system of justice. All other offenses under the honor code require guilt beyond a reasonable doubt; an allegation of sexual assault–even though a far more serious offense than virtually anything else that the honor code addresses–requires only 50.1% proof of guilt, and in a system where the accused student still won’t have the right to a lawyer.
An additional note: parts of the Inside Higher Ed article, written by Allie Grassgreen, read as if they’re a press release from Assistant Secretary Russlynn Ali rather than a work of independent journalism. The article asserts as fact that the letter “was less a mandate to develop new procedures than it was a reminder (albeit a pointed one) of colleges’ responsibilities in handling allegations of sexual assault under Title IX of the Education Amendments of 1972.” This statement, of course, is simply untrue–the letter mandated that colleges adopt a “preponderance of evidence” standard. And the letter’s assault on college students’ due process rights is rationalized as “part of a crackdown of sorts by the Obama administration on Title IX violations.”