One of the most important elements of a senator’s power comes in the tradition of recommending district court judicial nominations in the senator’s home state. And so it perhaps should come as little surprise that the Senate’s most ardent opponent of campus due process, Kirsten Gillibrand (D-New York), would have recommended the author of the most aggressively anti-campus due process opinion to come from the federal courts. In a 58-page opinion, Judge Ronnie Abrams granted summary judgment to Vassar College in a case filed by Peter Yu.
The Abrams decision was particularly disturbing because Vassar’s handling of the case was particularly egregious. To review: Yu and a fellow member of the crew team attended a party, had quite a bit to drink, and then returned to his room to have sexual relations. Yu’s roommate interrupted them, the accuser said she didn’t want to go any further, and she left—following this up with several Facebook messages, over many weeks, in which she expressed regret for how the evening had wound up. Then, on the last day allowed under Vassar procedures, Walker (whose father is a Vassar professor) filed a sexual assault complaint at the school; the timing precluded Yu’s filing a counter-claim. She further requested that the matter be handled for Vassar’s opaque Interpersonal Violence Panel (whose procedures aren’t public), on which three of her father’s colleagues would serve. (Vassar denied Yu’s request that the panel include a student.) The entire process—from filing of charges to the “investigation” to the adjudication to Yu’s expulsion—took less than three weeks.
Yu raised several concerns with the Interpersonal Violence Panel process; Abrams dismissed them all. He noted, for instance, the extraordinary speed of what passed for Vassar’s “investigation” and adjudication. In response, Abrams—a federal judge, remember—found no reason to believe “that eight days between the notice of charges and the verdict, or three days between the presentation of evidence and the hearing, is inherently inadequate.” Again: that passage came from a federal judge, describing the investigation and adjudication of a sexual assault claim.
Nor was Abrams concerned with how Vassar approached the right to counsel. Yu had to represent himself during the proceedings, and his attorney wasn’t even allowed to be present at the IVP hearing, much less participate in it. This provision was no problem, Abrams reasoned, because Vassar’s policy explicitly stated that the student could hire a lawyer, at his own expense. Once hired, of course, the lawyer then could have no role in the process determining whether or not his client will be branded a rapist, a structure that a federal judge doesn’t find problematic. The “right,” as defined by Abrams, is illusory.
Nor was Abrams troubled by the fact that “no one is placed under oath” when they testify before the IVP. She noted (correctly) that Title IX doesn’t require witnesses to testify under oath. But she also suggested that she had no problem with Vassar’s approach on a theoretical level. “Particularly,” she noted, “since Yu was able to ask the witnesses questions through [IVP chairman] Inoa, the admission of unsworn testimony at the hearing does not mark the proceedings as flawed.” That line of argument doesn’t even make sense: how does the fact that Vassar allows the accused student (outside the presence of his counsel) to ask questions through a committee chair (which the chair can decline to present to the witness) in any way relate to the college taking no testimony in rape cases under oath? Judge Abrams doesn’t say.
Perhaps the most problematic aspect of the Yu case was the sense that the accuser—whose father, after all, is a Vassar professor—gamed the system. Her waiting until the very last moment to file charges robbed Yu of a chance to file counter-charges—that is, to claim that since both parties were drunk, the accuser was as guilty of sexual assault as was he. And her pushing the case to the IVP ensured that she would be judged solely by colleagues of her father, rather than by a mixture of students and faculty members.
Abrams saw no problems here, either. Citing depositions, she conceded that hearing panelists acknowledged knowing the accuser’s father, but said they hadn’t realized his daughter attended Vassar. No conflict of interest, she reasoned, thus existed. IVP chair Luis Inoa, however, understood that the process over which he presided involved his colleague’s daughter. The chair further admitted that he might have needed to have recused himself if he had a vote on Yu’s guilt. But under IVP’s (non-public) procedures, the chair doesn’t vote, and therefore Inoa maintained his position on the panel. He controlled the proceedings and—critically—decided which of Yu’s questions would be presented to the accuser, and in which form. (Yu had contended that Inoa’s role denied him a full chance to cross-examine the accuser.) So the person who screened all questions admitted that despite an apparent conflict of interest, he declined to recuse himself.
Vassar’s “evidence” against Yu came in the form of one-year-after-the-fact testimony from two of the accuser’s friends, who described her as “very drunk” on the evening. By contrast, the IVP declined to hear from Yu’s roommate, on grounds that he couldn’t comment on the accuser’s level of intoxication. The panel doesn’t appear to have pressed the two friends on what they regarded as “very drunk,” or whether the duo considered the accuser or the accused more intoxicated—and, of course, no medical evidence existed to corroborate the accuser’s (or the accused’s) intoxication level.
Judge Abrams has no problem with Vassar’s handling of this issue, citing to a 2002 decision (from a DUI case) in which a Maryland federal court had held that an arresting officer could offer his lay opinion about whether a driver was drunk. It should go without saying that two college students attempting to describe another student’s level of intoxication one year after the event aren’t in the same position as a police officer making a contemporaneous judgment. In any event, driving drunk is against the law; once the police officer in the Maryland case concluded the driver was drunk, the violation had occurred. For sexual assault at Vassar, on the other hand, the standard is “incapacitation”; simply because a student might have been drunk doesn’t imply incapacitation—as the wording of Vassar’s own policy (“the question of incapacitation is determined on a case-by-case basis”) implies. Was Abrams really suggesting that intoxication (the Maryland case) and incapacitation (the supposed Vassar standard) are equivalent?
Against the intoxication testimony of the accuser and two friends, Yu seemed to have a strong rebuttal—numerous Facebook messages from the accuser in which she apologized for withdrawing consent (thereby seeming to concede that Yu had respected her decision) or in which she seemed to be on good terms with Yu. Even Judge Abrams conceded that the messages “could be deemed to contain exculpatory information.”
In depositions, one member of the IVP offered a fascinating explanation on why the panel downplayed the messages: “The Facebook messages appeared after the incident. And we as panelists are tasked with working through the incident and what led up to the incident.” So, to be clear as to how Vassar’s IVP evaluates evidence: near-contemporaneous written documents discussing the incident aren’t important, because those documents appeared “after the incident.” But one-year-later, unsworn, oral testimony is perfectly acceptable.
This bizarre explanation was too much even for Abrams, who instead essentially provided Vassar’s defense for the college. In arguing that the Facebook messages didn’t require presenting this case to a jury, she stressed the accuser’s psychological state to dismiss their relevance. The judge credited the accuser’s (one-year) after-the-fact assertion that the messages did not “reflect any truth of how I felt that day because I was just trying to cope.”
There’s no sign that the IVP ever considered anything related to accuser’s psychological state, or that any medical or otherwise objective evidence existed to sustain the accuser’s convenient theory of the messages’ inaccuracy. Imagine applying the Abrams standard to a fraud case, in which e-mails of a high-ranking employee contained damaging inferences about the substance of oral remarks he made months later, and in which the employee asked a judge to ignore these contemporaneous e-mails because (without citing any medical evidence) the messages didn’t reflect the truth of how he actually felt at the time, when he was under great pressure and just trying to cope. Such a defense would be laughed out of court.
Judge Abrams’ decision brought to a close a streak of judicial victories for students who filed due process lawsuits against their college or university. The normal pattern in such suits (Duke is an exception) featured the school losing the motion to dismiss—before judges appointed by Democrats and Republicans—and then quickly settling, lest discovery allow the accused student access to the sort of embarrassing revelations about the campus disciplinary process that was exposed in the Yu case. One of these decisions even occurred in a district court located in the Second Circuit, involving Vermont’s Marlboro College.
Yet Abrams’ opinion mentioned none of these other decisions. Indeed, though she referenced a “thriving public debate” over the topic, readers of her opinion would never know that this debate has extended to the federal judiciary. Nor would they know that, in recent months, her point of view has been on the losing side time after time. Based on the point of view manifested in her opinion, Judge Abrams pretty clearly would have decided the Xavier, or Swarthmore, or St. Joe’s, or Marlboro, or DePauw, or Duke cases the other way. Her choice not to engage with any these opinions, however, is puzzling.
While Abrams couldn’t find time to discuss seemingly relevant decisions by her colleagues on the federal bench, she rushed to embrace the “Dear Colleague” letter, giving it the same weight as settled precedent. Abrams even justified Vassar’s denial of a right to cross-examine by citing to the Dear Colleague letter—which “strongly” discouraged, but did not prohibit, the practice. In this respect, as FIRE’s Samantha Harris noted, the “opinion should remind due process advocates of why continued pushback against the federal government’s overreach into the operation of university judicial systems is necessary.”
Yu’s attorney, Andrew Miltenberg, told the Examiner’s Ashe Schow that he plans to appeal. Advocates of due process on campus can only hope that Judge Abrams will not be the last word on the subject.