The OCR is back in action, investigating new claims that college procedures dealing with sexual assault do not support accusers enough and so have violated Title IX. The Los Angeles Times reports that a complaint was filed against USC–by a student who had brought her allegations to police, only to have the DA’s office conclude there was insufficient evidence to file charges. And Bloomberg reports that an investigation is continuing against Dartmouth.
In line with past practice from the mainstream media in reporting Title IX complaints, none of these articles, nor the mentions of the inquiries in the higher-ed press, actually describe the procedures that are allegedly so unfair to sexual assault accusers. Providing such context dramatically changes the storyline.
At Dartmouth: Unless simultaneous criminal charges have been filed, the accused student cannot have a lawyer participate in the proceedings. (Tellingly, the college itself does have the right to have an attorney present during the hearing, to offer “procedural or legal matters necessary to ensure a fair proceeding”; the college does not explain why this right is denied to the accused student.) A college-affiliated non-attorney “advisor” is allowed, but cannot speak during the hearing. “Formal rules of evidence and courtroom procedures are inapplicable”; the hearing chair has the right to make all procedural decisions, “including rulings on relevance and admissibility of material,” which do not appear to be subject to appeal. The accused student doesn’t have the right to cross-examine the accuser; whether he is allowed to do so depends on the discretion of the chair–who is, as noted above, not bound by formal rules of evidence.
The accuser has the right to close the proceedings to the public, even if the accused student wants the public right to clear his name. Perhaps most chillingly, guilt is determined by a preponderance of evidence and a majority vote of the five-member (two students, two professors, and one administrator) disciplinary panel. As a result, if three of the panelists conclude that the accuser is ever-so-slightly likelier than not to have told the truth, the college will brand the accused student a rapist, even if the other two members of the panel are 100 percent convinced that he was innocent.
At USC: By the standards that exist at today’s universities, USC is rare, in that a student accused of sexual assault does have the right to cross-examine his accuser, and also has the right to an attorney–but the review “does not follow the formal rules of evidence and procedure attorneys may encounter in other judicial forums,” with “academic decorum” (a term that’s undefined) requiring “that the attorney play a different and a more limited role than in the courtroom.” No explanation is given as to why this would be.
Among these non-judicial procedures is a right for the three-person judicial panel to “exclude ‘expert’ witnesses,” who are often critical in sexual assault defenses. The accused student can examine the evidentiary file against him–but only if he gives written notice one day in advance, and does not retain any of the material. (The student’s lawyer does not appear to have any right to examine the file.) In general, “Rules of evidence and discovery used by federal and state administrative proceedings shall not be applicable.” And a student can be convicted if the panel decides that the evidence presented by the accuser, “when weighed against that opposed to it, has the more convincing force and the greater probability of truth.” The guidelines do not specify whether a guilty verdict must be unanimous.
To reiterate: at today’s colleges and universities, the USC procedures rank among the fairer to students accused of sexual assault.
It’s easy to understand why those students who have filed complaints–or why the due process-unfriendly OCR–choose to obscure these procedures, since it’s hard to imagine how any fair-minded person could construe them as unfair, much less wildly unfair, to a sexual assault accuser. But it’s less clear why reporters covering the issue (including reporters in higher-ed publications) have chosen not to explain the specific procedures that have triggered the complaints. The procedures aren’t difficult to find or read. And yet they’re critical to understanding the complaints. The students who have gone to the OCR are alleging not merely that these procedures are unfair to accusers in sexual assault cases, but that the procedures are so unfair to accusers that they constitute a violation of federal law.
Depriving readers this necessary procedural context also deprives readers of the opportunity to see just how extreme these OCR complaints actually are.