There are few good campus situations for accused students in the aftermath of President Obama’s Dear Colleague letter; virtually every school uses a process that at least in some way tilts toward the accuser. As a rule, however, students will have a better chance at public universities than at private schools, since public institutions need to provide at least minimal due process protections under the Constitution.
New York, it appears, is the exception to this pattern. Figures released in late December revealed the results of all Title IX adjudications in the state for the calendar year 2018. Overall, just under 60 percent of adjudications ended with a guilty finding against the accused student. But the percentage was much higher at the state’s public schools—63.3 percent at SUNY and a shocking 78.5 percent at CUNY.
It’s not hard to detect a possible reason why: Andrew Cuomo. The New York governor appoints the majority of both the SUNY and CUNY board, and few politicians are as strongly opposed to fair treatment for students accused in the Title IX process than Cuomo. He was the driving force behind the 2016 “Enough Is Enough” law, whose procedures had the effect, and likely the intent, of tilting the Title IX adjudication process even further in favor of accusers. In perhaps the statute’s most troubling provision, the law informs universities that they must leave accusers “free from any suggestion” that they are “at fault when these crimes and violations are committed or should have acted in a different manner to avoid such crimes or violations.” But, of course, what the statute terms “the reporting individual” might not be truthful—and therefore would be “at fault.” A system that rules out such a possibility is biased from the start.
The Cuomo administration has asserted as fact that “1 in 5 women and 1 in 16 men will be sexually assaulted while in college”—which would translate to around 130,000 New York female students around 35,000 New York male students every five years. (Those numbers would suggest that New York’s campuses are likely the most dangerous areas of the state, yet Cuomo—who’s currently flooding the subways with unneeded MTA police officers—hasn’t proposed more law enforcement presence on his state’s campuses.) In the event, the data colleges produced for 2018 show 719 adjudications, even under the state’s extremely broad definition of sexual assault and including non-assault Title IX claims—far below the apocalyptic levels of campus crime that Cuomo had cited to get the law passed.
The database of adjudications (another requirement of the law) mostly conforms to expectations. The vast majority of schools had zero, one, or two adjudications—hardly suggesting the type of campus crime crisis that Cuomo claimed. Large elite, private, residential institutions had significant numbers of adjudications: 29 at RIT, 28 at Cornell, 17 at Columbia, 14 at RPI, 14 at NYU. A handful of smaller elite private schools that have attracted notice for one-sided procedures appear to have continued their ways—4 of 5 accused students were found guilty at Colgate, 10 of 13 at St. Lawrence. Two non-residential CUNY community colleges (LaGuardia and Guttman) each had seven adjudications, with every accused student found guilty.
There were three outliers, all at public institutions where the possibility of political influence exists. SUNY-Albany had 34 adjudications—the most of any school in the state. (Twenty-two of the accused students were found guilty.) SUNY-Cortland, a school that enrolls fewer than 7000 students, had 19 adjudications—in which the accused student was found guilty 17 times. And my own institution, Brooklyn College, had more guilty findings (25) than any other school in the state. (Brooklyn is almost entirely non-residential.) The college is helmed by Michelle Anderson, one of the few prominent law professors to aggressively defend the guilt-tilting procedures of the Obama administration.
Perhaps Albany, Cortland, and Brooklyn are just unusually dangerous campuses. But the three schools’ disproportionately high numbers of adjudications raise questions about whether some type of political influence, rather than a commitment to a fair process, is influencing the Title IX policies of some public campuses.