Cornell is the latest university to face a due process lawsuit; last week, attorney Andrew Miltenberg filed a suit in New York’s Northern District. (You can read the complaint here.) The specifics are depressingly familiar—though with something of a twist, since Cornell featured one of the earliest post-“Dear Colleague” letter battles over due process. In 2012, the university administration ignored the prescient warnings of Cornell Law professors, one of whom described the school’s new policy as “Orwellian.” Indeed, the Cornell Daily Sun reported that Mary Beth Grant, who presided over the case that triggered the new lawsuit, “acknowledged the concern expressed by opponents of the change that an increase in allegations of sexual assault will result in more students being falsely accused or found in violation.”
The basics: in December, the two students had intimate relations after a night of drinking. Sixty-six days later, the accuser filed a complaint with Cornell, arguing that she was too drunk to have given consent. (It does not appear that she ever reported this alleged crime to the local police.) Cornell, which has moved to the OCR-approved “single investigator” model (in which a person supervised by the Title IX office serves as the equivalent of police, jury, and judge in a criminal trial), then opened an inquiry.
Much like the case at DePauw, the thrust of Cornell’s investigation consisted of asking students who themselves had been drinking at a party to analyze the intoxication level of anotherstudent who had been drinking at the same event—more than two months after the evening in question had occurred. According to the complaint, several students who partied with the accused and accuser affirmed that all had been drinking, but that no one was incapacitated; one witness maintained that the accuser had seemed more intent on initiating events. As at DePauw, the university gave more weight to students who corroborated the accuser’s story than to apparently identically-situated students who backed the accused’s version of events, seemingly to shoehorn a finding that would edge past the preponderance-of-evidence threshold. Apart from the accuser, Cornell’s main witness appears not to have been any of the students with whom the accused and accuser partied, but instead a close friend of the accuser with whom she breakfasted around 30 hours or so after the alleged encounter.
The university largely based its decision on the accuser’s claim (months after the fact) that she had consumed between 15 and 18 drinks on the night in question, although no witness appears to have confirmed this total; the complaint alleges that Cornell never even asked the accused student if he knew how much the accuser had drunk. Because the accuser never sought medical attention after the alleged crime, Cornell was left to guess at her intoxication level months after the fact. Accordingly, the investigator accepted the accuser’s recollection of how much she had drunk and her body weight in December, made a calculation based on tables from Cornell’s health services, and concluded that she had a blood alcohol count of .33, perhaps “up to a tenth of a point higher.” But if, in fact, the accuser was so incapacitated as to be at a near-fatal level of up to .43, how could she remember with such precision how much alcohol she had consumed, weeks after the night in question? And why, it seems, did none of the other people she encountered that evening notice her extremely intoxicated status?
Because Cornell now employs the single-investigator model, the accused student (and his representative) had no opportunity even to see the accuser testify, much less to cross-examine her. Among other things, this led to the school’s apparent acceptance that the accuser had allowed the accused student to stay over in her room not from a desire to have sex, but because of what she called German “sailboat community values.”
Cornell, as required by the “Dear Colleague” letter, allows either side to appeal; the accused student did so. Cornell vice president Susan Murphy rejected the appeal. Though she conceded that the report of the accused student’s blood alcohol level might be inaccurate, she nonetheless found that the accused student had consumed “considerable quantities of alcohol.” Nowhere in its sexual assault policies does Cornell define what constitutes a “considerable” quantity of alcohol.
The case also provides a reminder of the significant costs that result when a school brands one of its students a rapist. In this instance, the accused lost five job offers—an outcome that presumably will cost him tens of thousands of dollars in the short term and perhaps much more for his lifetime. If he actually is a rapist, of course, this punishment is insufficient. But—like Peter Yu’s rejection from several schools that had admitted him when he graduated from high school, or Lewis McLeod’s loss of his visa to remain in the United States—this is a punishment, and a quite serious one. Cornell’s apparent indifference to creating a process that’s most likely to produce the truth thus comes with considerable costs.
As of late, universities haven’t been faring too well in preliminary rulings in due process cases. Will Cornell be next?