The Weakening of Due Process at Penn

The Daily Pennsylvanian reports that Penn is moving full speed ahead to weaken due process protections when campus tribunals handle sexual assault claims—and only when they handle sexual assault claims. The DP notes that students accused of sexual assault will no longer be judged by a jury of their peers, and instead will face a panel of faculty members only. (Given the professoriate’s ideological mindset regarding gender-related issues, this move alone almost certainly will increase the likelihood of guilty findings.) Moreover, the DP reveals that the professors will receive “training”—guidelines for which I noted in a previous post.

Incredibly, the only opposition the DP could find to the new policy came from activists who argued it didn’t go far enough. Where are the members of the Penn Law Faculty?

Perhaps they’re reading Dorf on Law. The well-regarded legal blog recently ran a post from Cornell Law professor Sherry Colb, celebrating the movement toward preponderance-of-evidence in campus sexual assault tribunals.

Colb’s argument is troubling in at least two respects. First, she repeatedly justifies use of the preponderance-of-evidence threshold on grounds that civil cases use the standard. Citing wrongful death suits as an example, Colb writes, “The burden of proof in such a civil case (as well as in other similarly serious civil tort cases) remains preponderance of the evidence.”But, of course, college tribunals have virtually none of the due process features—right to an attorney, right to cross-examination, right to discovery—provided in the civil system. Rationalizing the preponderance-of-evidence threshold on grounds of its usage in civil suits therefore would seem at best a non sequitur (why should colleges adopt one feature of the civil system and not any others?) and at worst deliberately misleading, since readers might incorrectly assume that colleges afford due process protections when students are charged with what is, after all, a criminal offense. If Colb believes that college disciplinary processes should adopt all civil litigation procedures and not merely the preponderance threshold, she should say so. There’s no indication, however, that she does.

Colb’s second point in favor of the preponderance threshold is even more troubling. In a line of argument that resembles that of Stanford Law’s Michele Dauber, Colb celebrates the preponderance standard on the grounds that it will lead to more findings of culpability. (“When people are differentially reluctant to believe credible testimony by a rape victim, a promise to protect women (and men) from sexual assault on campus may require a standard of proof that accommodates this reluctance.”) She more or less concedes that this system might lead to more innocent students being branded rapists, but faults critics for focusing too much on the effects of false convictions.

To Colb, there’s an overlooked balance of “stigma.” For every student wrongfully branded a rapist, there’s the stigma for the “true complainant” whose case nonetheless ends in a “not guilty” finding. Such an outcome, Colb contends, is “very stigmatizing to the complaining witness — particularly if such a finding implies an embrace of the idea that the witness’s accusation was a lie, which it will in many sexual assault cases.”

This is a very strange definition of stigma. In the case of the student falsely branded a rapist, the harms are directly attributable to the college’s action, and are life-altering: the finding will appear in some form on his transcript, he’ll lose educational opportunities (how many colleges are willing to accept students deemed rapists as transfers?), and almost certainly will forfeit any future employment opportunity in jobs that require a background check.

The accuser’s transcript, by contrast, will contain no mention of her having filed a complaint that didn’t yield a finding of culpability. Nor would such an item likely appear in any background check.

Sexual assault is, obviously, deeply traumatic—which is why colleges should provide necessary counseling support for accusers and accommodate schedule adjustments as necessary. And colleges also could easily explain—perhaps through their law faculty—that even under a preponderance scheme, a not-guilty finding doesn’t imply that the accuser was lying. But Colb’s suggestion that lowering the burden of proof can remove the sitgma for the accuser seems rather far-fetched.

KC Johnson

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.

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