Now Cornell Is Being Sued

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?

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.

11 thoughts on “Now Cornell Is Being Sued

  1. Thought-provoking discussion – I am thankful for the points , Does someone know where my assistant might grab a template a form form to edit ?

  2. I just viewed the printable version of the 2011 “Dear Colleague Letter” from OCR’s website. Interestingly, in , footnote 46, the Office on Violence Against Women (OVW) offers financial incentive to universities that propel OCR’s agenda:

    “OVW also administers the Grants to Reduce Domestic Violence, Dating Violence, Sexual Assault, and Stalking on Campus Program. This Federal funding is designed to encourage institutions of higher education to adopt comprehensive, coordinated responses to domestic violence, dating violence, sexual assault, and stalking. Under this competitive grant program, campuses, in partnership with community-based nonprofit victim advocacy organizations and local criminal justice or civil legal agencies, must adopt protocols and policies to treat these crimes as serious offenses and develop victim service programs and campus policies that ensure victim safety, offender accountability, and the prevention of such crimes.”

  3. While we should not presume everything in the complaint is accurate, this is not the first time colleges have mishandled sexual assault allegations.

    In the end, the buck should stop with the OCR and their undue and prejudicial guidance, coupled with the threat that if institutions don’t show more men’s heads on pikes, they can lose their funding.

    There’s an old saying, “two wrongs don’t make a right.” The perceived and sometimes actual bias against men in these processes makes it abundantly clear that sexual assault allegations should be handled by the police.

    While the police are not perfect, they do have a single and major advantage when it comes to fairness. They have no skin in the game to prove they are getting tough on sexual assault.

    Colleges on the other hand are being pressured by the threat of loss of funding to prove they are listening to victims are assault, even if the accuser misstates the facts.

  4. Universities are choosing between two evils…1-being sued by a falsely accused and railroaded student or 2- receiving the wrath and repercussions from the Dept. Of Education/ OCR.
    Which will cost them less?

  5. When elite colleges have to sell their ivy to cover their mounting court costs, they might finally come to terms with the fact that being anti-due process is a losing position. It’s a tragedy that in the meantime so many young people will have to have their lives upended. The closest thing to justice that can be done is to award those young people enough money in damages for them to retire at 25.

  6. Universities are incompetent to determine guilt or innocence in criminal cases, most especially in ones such as these with high levels of political and ideological pressures involved. Moreover, I would wonder what legal basis exists for a university – prior to a determination of guilt or innocence in a real judicial system – hold any hearings even those deciding on expulsion or similar punishments, to conduct hearings on events which are plainly criminal accusations of the most serious sort. When will OCD decide that universities ought to decide murder cases? How about thefts? What of aggravated assaults? Universities ought to confine themselves to their competence in judicial matters. That would be determining who knocked over whose sippy cup and who took whose cookie during recess. More serious matters than those are utterly beyond the capacity of universities to determine with any probability of arriving at fair just and truthful decision.

  7. There’s an article in the New York Times titled “New Factor in Campus Sexual Assault Cases: Counsel for the Accused” (and features — among others — Andrew Miltenberg, one of the attorneys who filed this lawsuit against Cornell).

    http://www.nytimes.com/2014/11/20/nyregion/new-factor-in-campus-sexual-assault-cases-counsel-for-the-accused.html

    A quote:

    “Colby Bruno, senior legal counsel at the Victim Rights Law Center, said the growing involvement of lawyers could be beneficial. But too often, she said, defense lawyers enter the campus proceedings “shouting from the rooftops about things that aren’t relevant to the matter at hand.” Those include due process, a set of regulations that private colleges are not required to observe, and the right to avoid self-incrimination, which applies only to people facing criminal prosecution.”

    Private colleges aren’t required to observe due process? Does this mean that a private college can have _any process_ for adjudicating disciplinary matters? How about employing torture in order to obtain self-incriminating statements?

  8. Cornell is damn lucky that I’m not a trier of fact in this case, because if I was, I’d award the accused male student a judgment deep into the eight-figure range.

  9. 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.”
    —-
    There’s no sexual congress among members of German sailboat communities?

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