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.

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.

It’s worth remembering that the sexual assault procedures
about which the Association writes are already severely tilted in favor of the
accusing student–both because of the OCR’s pressure for colleges to employ the
minimal “preponderance of evidence” standard, and because many colleges
(Cornell, UNC, and Yale come to mind) have various procedures (such as
preventing cross-examination or denying accused students the right to counsel
in the campus proceedings) that weaken the ability of an accused student to
present a full case.

Perhaps more important than the fear of
successful lawsuits, the Association notes that allowing presidents to hear
appeals carries a risk: they might upend the judgments of the generally
pro-accuser campus disciplinary tribunals. (Recall the Yale
guilty-with-no-chance-of-innocence structure as a jarring example.) Presidents
and other high-ranking officials, according to the “Tip of the Week,” are “not
always good at being deferential.” Such lack of deference might lead to a
“rehashing” of “facts,” something the Association very much wants colleges to
avoid.  The “Tip of the Week” recommends
that appeals “be heard by a committee, and it need not be a committee that is
higher up the food chain than the original deciders.” And best of all, it
seems, is “the model of an equity grievance panel, in which appeals decisions
for the accused student results not in dismissal but the case being “returned
to the original decision-maker(s) in most cases.” In this Kafka-esque approach,
an accused student whose rights were violated could spend his entire college
career dealing with the disciplinary process, with appeal after appeal sending
his case back to be reheard by the same biased “fact-finders” that made the
initial ruling.

Seeking to build off the momentum from the “Dear
Colleague” letter, the Association also is urging administrators to receive
special training in a four-day session devoted to how to implement new,
guilt-presuming sexual assault standards.

When colleges and universities use the “adversarial
process” to deal with such complaints, the Association laments, “Justice is rarely done. Truth remains elusive.”
(Perhaps we should simply shut down the court system, as well.) What explains
this failure? Too many schools are “trying to fit campus sexual misconduct into
a student conduct/discipline framework.” Instead, according to the
Association’s training guide, colleges need to use a “civil rights
investigation model for addressing campus sexual misconduct”–which has the
advantage, for those interested in overriding due process concerns, that it is
“not police-led investigation, and it is not the same as investigating a
student conduct violation.”

The topics make clear the one-sidedness
of the session’s agenda. (In addition to administrators, the Association
invites “prosecutors, sex crimes investigators, magistrates, victim advocates
and judges“–but
not defense attorneys or civil liberties advocates.) Topics on
how colleges should respond to sexual assault/harassment claims include such
issues as “due process myopia” and “is a hearing necessary?” The list of
“experts” invited to train campus administrators includes Brett Sokolow, who rivals
the notorious Wendy Murphy in the almost cheerful willingness with which he
presumes guilt in sexual assault cases. As
FIRE’s Will Creeley has correctly noted, Sokolow has exhibited a “disdain
for due process [that] echoes the worst instincts of the angry mob.”

Between travel, rooms, and registration fees, the
Association’s conference–conveniently hosted in sunny Orlando–will cost
hundreds of dollars per participant. How many supposedly cash-starved public
colleges and universities will nonetheless fork over money to send
administrators for this training?