The Office for Civil Rights (OCR) is on the warpath again. The Pittsburgh Post-Gazette reports that the OCR has launched an investigation of Penn State. And while Penn State is an institution that is hardly deserving of sympathy, given the exposés of the Freeh Report, the OCR’s move has to raise eyebrows.
The Penn State episode is distinctive in at least two respects. In what appears to be a first–at least in the recent round of inquiries–the OCR has acted on its own initiative, without waiting for a complaint from campus “activists.” And the OCR has explicitly cited Penn State’s sexual assault procedures as justification for this highly unusual move. “Our initial review of Penn State’s sexual harassment policy,” the OCR wrote, “compounded by a dramatic increase in the number of forcible sex offenses occurring on campus as reported by the university itself, raised legal concerns that compelled us to investigate.”
What, then, are the specifics of the Penn State policy that “compelled” OCR to “investigate”? A reader of the Post-Gazette article–or, indeed, other coverage of the matter–would be excused for assuming that the procedures must be tilted strongly against the accuser. But, as is customary in such cases, the reverse is true.
When an allegation of sexual assault is filed, a Penn State administrator conducts a preliminary investigation. If he or she deems the allegation credible, a hearing (which “will take place as soon as reasonably possible”) is convened before a five-person board. The accused student is guaranteed only five days to prepare his defense, though the university can grant more time. The accused student doesn’t have a right to an open hearing, and can only bring a lawyer if he simultaneously faces criminal charges–and even in these circumstances, the lawyer can’t speak in the hearing. The university bluntly informs accused students that it does not employ “formal rules of process, procedure, and/or technical rules of evidence, such as are applied in criminal or civil court.” Virtually the only protection given to the accused student is the right to cross-examine his accuser–a practice, to be conceded, the OCR strongly discourages. That said, Penn State sides with OCR on evidentiary standards. A five-person panel called the UCB, judging on a preponderance-of-evidence (50.01%) threshold, can deem the student a rapist. And the accuser can appeal a not-guilty finding.
While Penn State (unlike, say, Yale) defines sexual assault in a normal fashion, it also indicates its appreciation for a politically correct approach to the problem. Sexual assault, according to a document posted on the university’s Women’s Center website, is “the extreme expression of a continuum of sexist behaviors” including “from sex-role stereotyping and sexist remarks.”
Perhaps the most remarkable element of the Penn State policy is its “Special Protocol for Crimes of Violence.” Under this section, which applies to all sexual assault hearings, “the victim will be allowed to attend the entire portion of the UCB hearing”; “the victim may question all witnesses and the accused student”; the “victim may be assisted by a University Advisor”; and the “victim may also be supported by a victim advocate.”
Note the wording here. While the “UCB hearing” is occurring, Penn State’s own wording holds that a sexual assault accuser is already “the victim,” before the UCB has even made its finding. And yet, according to Penn State, all of this confirms the university’s promise of a “right to fair and equitable procedures” to all accused students.
The OCR considers the procedures described above so egregiously violative of the accuser‘s rights that the office has, on its own, opened an inquiry. This is a breathtaking move even for an agency that has distinguished itself since 2011 for its hostility to due process rights for students accused of sexual assault.