College Attorneys Face the War on Due Process

The Chronicle has a revealing piece on a group largely overlooked in the war on due process—college attorneys, who since 2011 have been aggressively pressured to establish systems to investigate one of the most serious offenses in the criminal justices system (sexual assault) with few, and in some cases none, of the tools available to law enforcement.

Reporter Eric Kelderman writes, “In conversations with lawyers here at the annual meeting of the National Association of College and University Attorneys, . . . [they] expressed frustration that their institutions were being held to a different standard than even law-enforcement agencies and were being given increasingly complex rules that sometimes go well beyond their capacity.”

According to Kelderman, the college attorneys raised two separate issues. The first focused on the differences between the capabilities of the college disciplinary process and a criminal investigation. It’s hard to imagine investigating a sexual assault without, at minimum: (1) access to the contemporaneous e-mails/text messages of the accuser and accused; (2) access to the post-incident medical examination of the accused; and (3) access to physical evidence (for instance, DNA samples or surveillance video outside the scene of the alleged incident). Yet since colleges and universities lack subpoena power, they can’t obtain any of this information, except perhaps surveillance video from campus dorms that have such equipment. To the best of my knowledge, neither the OCR nor anti-due process “activists” have never explained why they believe colleges are capable of effectively investigating sexual assault claims without the tools provided by subpoena power.

Second, according to Kelderman college attorneys raised the issue of how the OCR’s re-interpretation of Title IX has robbed colleges of all discretion. In a criminal case, prosecutors can decline to file charges if they deem an accuser non-credible; police, too, could simply stop investigating an allegation if they determine an accuser’s story makes no sense. But colleges don’t have such discretionary authority. If anything, it’s just the reverse: as OCR made clear in its settlement letter with SUNY, even if the police investigate a sexual assault complaint and conclude the accuser is lying, the college must independently investigate the complaint. (And since the school lacks subpoena power, it might not have access to the evidence that allowed the police to make their determination, compounding the risk of an incorrect finding.)

It should come as little surprise that in a movement so dismissive of due process that these concerns have attracted virtually no interest from either OCR or the activists. This attitude appears to have taken aback even the Democratic senators who have affiliated themselves with the issue. As FIRE’s Susan Kruth recounted, at a recent Senate roundtable on the issue, Connecticut senator Richard Blumenthal wanted to know “what lawmakers can do to ensure that students’ due process rights are respected.”

The activists weren’t interested in responding to Blumenthal; Georgetown Law Research Fellow Nancy Chi Cantalupo told the senator that as long as colleges followed their own procedures, whatever they might be, the school had provided sufficient due process. Indeed, as Kruth noted, the logic of Cantalupo’s expressed support for an “even playing field” between accuser and accused would be a dispensing of the presumption of innocence—a development that has effectively occurred at many schools.In the end, unless judges intervene, the situation seems likely to get worse for due process rather than better.

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

9 thoughts on “College Attorneys Face the War on Due Process

  1. If you want to see a Title IX extreme overreaction in progress, look no further than The Ohio State University. On July 24, 2014, its Marching Band director, Jon Waters, was fired after a botched Title IX investigation allegedly revealed a “sexualized culture”. This man, who was already making great strides in making a supportive and positive environment even more so, was made a sacrificial lamb for a university under federal scrutiny by a 3-week president, Dr. Michael V. Drake, who is himself mired in a history of controversial crisis management decisions.

  2. KC Johnson, there’s an interesting situation at The Ohio State University and lack of due process regarding Title IX fears for fired band director Jonathan Waters. Would make an interesting follow-up piece. A personnel report, written just prior to his firing, praised him for doing the very things he was fired “for not doing.” This lack of due process isn’t just for the accused in sexual assault cases, but for faculty and staff as well.

  3. As of today, the war on due process has seen another front materialize. The Foundation for Individual Rights in Education (FIRE) has announced its Stand Up For Speech Litigation Project. Their intention seems to be to coordinate a first amendment lawsuit in each of the 11 federal court districts. As cases are won, or settled, another lawsuit will be filed against another university in that district until universities amend their speech codes to be compliant with basic civil rights.

    While making this announcement, FIRE also announced the filing of four new lawsuits as a part of this new project. FIRE announced that they coordinated the filing of lawsuits against Ohio University, Chicago State University, Iowa State University, and Citrus College, in the 6th, 7th, 8th, and 9th federal court districts respectively.

    Due to the fact that many harassment policies seriously impinge on free speech and due process rights, it is inevitable that any number of universities will be hearing from FIRE in the future, on these and other civil rights issues. With the number of lawsuits from accused students on the rise, in combination with title IX lawsuits and illegal advice from OCR, this all seems to indicate that there will soon come a moment when colleges will finally have to come up with a relatively simple, and defensible in the real world, stance on issues that colleges seek to punish students over.

    On a side note…

    Is J.K. Wilson actually proposing that students should be punished over nothing more than an accusation? Let’s consider the implications of this: a student who maliciously files false charges against another student can have that student expelled, without evidence, without being punished by the university or having the other student’s punishment repealed. Which, of course, is already the case on campus, even when an actual police investigation finds enough evidence to charge the accuser with filing false charges. This is not hyperbole, it already happens. So, is J.K. Wilson supporting rules that result in all that?

    Obviously, my point is that the issue is not so simple. As such, it is not one best left in the hand of a college administrator. And no, I doubt that anyone is suggesting that a student cannot be expelled for illegal behavior on campus. If an attack, or clear threat, happened in front of witnesses and can be clearly proven in a disciplinary hearing, or course they can be removed. That does not require the results of a police investigation. If the student allegedly committed a crime off campus, the university should not automatically designate a punishment until conviction. Since plenty of people claim that police racial profiling is a big problem, it should be clear that guilt cannot be assumed based solely on accusation, or even a filing of charges.

  4. Is K.C Johnson actually proposing that colleges should never investigate and punish criminal behavior on campus? Let’s consider the implications of this: a student who punches a professor, or makes a death threat against another student, or burns down the campus Hillel, or murders someone, could not receive any punishment from the university. And if they happen to not be punished by the criminal system, you could have a violent attacker roaming free on campus, with the victims forced to take classes with a violent criminal. Which, of course, is already what happens with sexual assault victims. So, is K.C. Johnson supporting a rule that would result in all of that?

    1. John K. Wilson
      JUNE 30, 2014 AT 3:06 PM

      So you propose that Universities investigate, accuse, try, convict, and punish students for crimes of which they were found not guilty by a criminal court or that competent authorities refuse to prosecute? How does the presumption of innocence fit into that scenario? What minimal right to due process do you propose the Universities respect? Do you expect the Universities to employ criminal investigators, or will the Dean of the College of Liberal Arts be cross trained?

  5. “Georgetown Law Research Fellow Nancy Chi Cantalupo told the senator that as long as colleges followed their own procedures, whatever they might be, the school had provided sufficient due process.”
    This idiot is a law professor? So following rules, no matter how abusive they are to the accused rights, constitutes due process. By that idiotic definition a Stalinist or Fascist show trial has due process as well, after all they followed rules too, just not very good ones. Even the Salem witch trials had rules they followed, so she must think they had due process as well. Is she going to allow spectral evidence now, and perhaps allowed torture to elicit the proper confessions.

  6. Professor Johnson, I have followed the Durham case and your writings closely enough that I am a bit surprised that here you seem to miss the point entirely. Thank goodness readers like me can set you straight.

    You ask how colleges can investigate sexual assault charges without certain listed basic information; I’d add the right to confront your accuser, which many if not most of the procedures specifically disallow.

    That begs the question, in assuming that the campus authorities want to investigate charges thoroughly. It seems obvious to me that their jurisprudential inspiration is Andrei Vishinsky–the charge is proof enough. No further evidence is sought, and no further evidence is needed.

  7. None of this should surprise. The activists, both in and out of government are out to create what they believe is the new perfected man (and woman) by any means necessary. If that means destroying peoples lives – well you can’t make an omelet without breaking some eggs.

  8. College and universities must restrict their activities to a “disciplinary process” else end up in the same place as multiple dioceses of the Catholic Church, paying large claims. Criminal investigation and prosecution are the job of the civil authorities. Colleges and universities must only determine if the continued presence of these individuals are a clear and present danger to the student community and the ability of those in the student community to receive their education without disruption.

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