Due Process

No Justice at Harvard: Accused Students Don't Get Attorneys, Cross-Examination

Alumni could be called to participate in due-process-free trials for years to come.

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Harvard University
Wikimedia Commons

Harvard University has followed other Ivy League colleges in releasing—at the behest of the federal government—updated guidelines for how administrators should adjudicate campus sexual assault accusations. The new procedures are as vexing for civil libertarians as the old ones: They do not permit the accused to consult an attorney or to cross-examine witnesses.

In fact, accused students may not even be told who their accusers are or what testimony they have given. According to KC Johnson of Minding the Campus:

At no point does the accused student—or even his "advisor"—have a right to cross-examine his accuser, or to receive a full transcript of the accuser's interview. The accused student doesn't have the right to cross-examine any witness. (Indeed, the accused student doesn't even have a right to know the identities of all witnesses who gave the investigator/designee duo evidence against him, much less a full transcript of what they said.) Neither the policy nor Harvard's statement announcing the policy explains why the university has eliminated cross-examination—although, as seen with Michele Dauber's efforts at Stanford, it's reasonable to speculate that the university concluded that cross-examination makes exonerations more likely.

Moreover, since Harvard provides only a "redacted version" of the documentary evidence to the accused student, it's possible that the student can be branded a rapist based on information that he never had a chance to see, much less rebut. Reflecting their overall vagueness, the guidelines do not list the criteria under which the investigator/designee duo can redact evidence, nor do they spell out the grounds for appealing such a decision.

It seems like accused Harvard students are even forbidden from disputing and publicizing the cases against them. According to the policy, "Sharing such information might compromise the investigation or may be construed as retaliatory. Retaliation of any kind is a separate violation of the Policy and may lead to an additional complaint and consequences."

Johnson explains that an accused student who believes his civil rights have been violated could be deemed guilty of "retaliation" if he alerts the media or files a lawsuit.

And unlike policies at many other universities, Harvard's policy includes no statute of limitations. Alumni could be called to participate in due-process-free trials for years to come.

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  1. Those who think the country ought to be run by intellectuals should first check out how intellectuals run college campuses.

    1. Those who think the country ought to be run by intellectuals should first check out how intellectuals run college campuses be taken out back and beaten with a fire hose.

      FIFY!

    2. Haha, perfect. Just thought the same thing and wrote it below before I saw this

  2. I could care less if the school gave them access to the top,legal minds in the world free of charge. The real issue is this: SEXUAL ASSAULT ACCUSATIONS ARE THE DOMAIN OF THE LOCAL DISTRICT ATTORNEY, NOT SOME PANEL OF COLLEGE STUDENTS AND FACULTY.

    Jesus titty-fucking Christ. Why would a college student voluntarily consent to give up their constitutional rights to a fair trial or counsel just to attend a school? No way. No fucking way would I accept that in today’s climate of zero-tolerance and zero-personal responsibility.

    1. That’s the most baffling thing about this “controversy” so far as I’m concerned. The concept of a college having its own justice system seems literally medieval to me.

      1. Perhaps Harvard intellectuals think having a sort of Sharia Law system is a swell idea.

        1. They evidently like the Spanish Inquisition’s rules of procedure.

          1. Yeah, but everyonemale should expect the College Inquisition.

    2. I think it is safe to say that the cases probably do go to the D.A., and then when it turns out there isn’t enough evidence for an indictment (let alone conviction), these show trials are invoked.

      1. So they’re, for all intents and purposes, kangaroo courts designed to punish people who aren’t charged with a crime but offend the sensibilities of another student.

        Fire. Cleansing fire.

        1. Hopefully whenever that libertarian organization that is suing over campus “free speech zones” wins their case, they take on this issue next. I don’t see how there could be any legitimate legal rational for this.

          1. Legal rationale: educations have the right to set their admissions standards and all students entering our university must agree to adhere to the campus disciplinary panel system before they can enroll.

            They’ll call it free association and say the kids are free to go elsewhere if they don’t want rapists to face justice through the campus system. And people will cheer them on for doing a better Jon than the local good old boy network of cops who are, by their very nature, full of mysoginysts.

            How does that sound? About right?

            1. Yes I’m sure that is it. This is the one time they will try to lean on free association. But if Rand Paul mentions it in passing he is a horrible racist.

              I think any lawyer worth his salt would be able to make the case that these days a university like Harvard is inextricably tied into a public-private partnership — for one they get millions in taxpayer-funded research grants every year.

              1. They’re counting on the fact that many of the accused will be willing to put up with a lot to not get thrown out of school. They bothered to do what was necessary to get it, and that has value to them. This is a way of taking that value hostage.

              2. Nearly every single university in the country takes federal money in some form or another. Accordingly, nearly every single university in the country is bound by Title IX of the Civil Rights Act. There are a series of lawsuits in various stages of litigation pending against a raft of schools for violating the civil rights of accuseds in these show trials.

              3. Say what you will about Jim Crow era free association/discrimination, but I don’t recall all the stories of businesses charging black people hundreds or thousands of dollars then deny them goods/services after subjecting them to sham hearings in kangaroo courts.

            2. Cool, so long as no tax money goes to support this nonsense.

          2. I can think of a couple of claims you could make that don’t rely on due process violations

            (1) Libel/slander/defamation. Make them prove their case in court, in effect. And, since you aren’t a public figure, they don’t get the benefit of the high bar that public figures have to clear to bring these suits.

            (2) Breach of contract. These things are new. They weren’t around when students in their third and fourth (and possibly second) years enrolled. They can’t change the deal this fundamentally after you have committed to the school in reliance on the absence of kangaroo rape courts.

    3. “I reject your claim of jurisdiction and here is my civil suit.”

      1. This.

        “Also, fuck you.”

    4. Yeah, that’s the big thing here. The school’s disciplinary process should be for cheating and plagiarism and other ethical matters pertaining to education, not serious crimes.

      1. The problem being that the actual legal system has annoying things like due process and the accused having rights. That often leads to socially unjust outcomes (i.e. acquittals). You are not taking rape seriously if an accused rapist is found “not guilty”.

  3. Pro tip: if you want to imagine what society at large would look like if the bien-pensant intelligentsia had the sway they thought they should, look at universities as a microcosm

  4. This is star chamber level shit. But don’t the administrators and faculty agreeing to this realize that they’re next?

    1. They do not. They all think they’ll be the judges and executioners, never the accused.

      1. I wonder what Charles I thought.

        1. I keep channeling Robspierre as he went to the guillotine.

          The power you give the government to do unto others will be used to do unto you.

    2. They wrote exceptions in for themselves.

      1. Even if so, the people clamoring for this shit never, ever stop. They always, unceasingly, want more. Exceptions will be chipped away at. You can’t give these types even the tiniest bit of ground; they’re just like gun grabbers. They will never, ever be satisfied.

        1. I don’t know what you are talking about. All these people want is a separate part of the restaurant for non-smokers. It will never go farther than that.

  5. I take it that it is irrelevant if slutty jerkoff has a history of false rape allegations?

    1. There’s no such thing as a false rape,allegation. There are only unconvicted rapists.

      -modern feminist fuckhead

      1. Two words: Duke, lacrosse, team. No — wait. THREE words: Duke, lacrosse, team, railroad. Wait wait. FOUR words……………

        1. That’s unpossible. Veteran journalist Nancy Grace assured me the those Duke boys were guilty.

          1. That gal is about the most loathsome person in the private sector that I can think of.

            1. She’s the Cleveland Browns of investigative journalism.

            2. She’s a perfect example of prosecutorial-derangement syndrome.

          2. If Nancy Disgrace said that 2+2=4, I’d want another source.

          3. So did Boss Hogg.

        2. Shall we expect……never mind.

  6. Someone must have been lying about John Harvard, because he awoke one day to discover that he was a rapey, harrass-y, cisgendered, misogynist, racist, Republican.

  7. If I were a cocky Harvard student with a libertarian bent, I think I’d have a girl help me test this system, by having me accuse her of sexual assault. That would be fun — who’s bringing the popcorn?

    1. Someone would end up raped, most likely you.

      1. Go on……..

    2. I think you missed the idea that we’re going to get rid of cocky Harvard students. Only the pussy ones can stay.

  8. There’s no sugarcoating it – this may be an issue for some people.

    1. If that doesn’t sound like something Anon Bot would say!

  9. Sorry, but I think this is trite, but obligatory.

    I’d rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.

    William F. Buckley, Jr.

  10. This has been around recently too:

    http://www.independent.co.uk/n…..92559.html

    Forced testimony, prove your innocence.

    It comes down to this: a woman who fancies a man does not really want him to toss her around a bit in the bedroom. False consciousness or some third party’s consciousness?

  11. SOP for the left. No matter what they call themselves, fascists/socialist /progressives they operate the same.

    1. At least in the past they were openly eugenicist and racist and elitist.

  12. Think how well these procedures could have been used against the Scottsboro Boys.

  13. How is this not a lawsuit waiting to happen?

    1. It is, and they’ve already been filed at some schools.

      But college administrators are known morons.

    2. If it’s in the contract that the school gets to kick you out, keep your money, and put a big R on your transcript, then you shouldn’t go there.

      Ideally.

  14. God bless them, Harvard students are paying a hefty tuition to get this kind of treatment.

    1. After the student loan bailouts, you’ll be paying their tuition.

  15. If leftist intellectuals cared one whit for equality, they’d be against this fascist shit as well as affirmative action admissions policies and Title IX. Instead they hold them close to their bosom and decry anything that bruises their sensibilities as mysoginyst, racist or anti-inclusive hate speech.

    1. ‘anti-inclusive hate speech.’

      That’s a twister, sloopy. We can’t have all-inclusive hate speech for then there would be no one to hate.

    2. My fellow traveler (useful idiot?) “liberal” friends go so angry when I point out the inevitable ends of their policies instead of taking them at their stated intentions.

      1. That’s because words and intentions matter, Brett, and actual actions and consequences mean nothing. Otherwise they might have to do some work to follow through on their lofty statements! Or, horror of horrors, some personal sacrifice!

        1. You know what has been awesome recently? Reminding all my die-hard Democrat friends forget that Charlie Crist once brought shackles on the floor of the Florida House of Representatives as a prop trying bring back the chain gang during his “tough on crime” Republican days. “Yeah, sure, he’s a sociopathic liar who will do literally anything, including marry, to further his ambitions, but he’s running against Rick Scott!”

  16. There’s already a cottage industry of lawsuits against universities for this BS. Some nice settlements so far. Instapundit follows these. Sorry, no linkee.

  17. Moreover, since Harvard provides only a “redacted version” of the documentary evidence to the accused student, it’s possible that the student can be branded a rapist based on information that he never had a chance to see, much less rebut.

    Has Havard run this by their lawyers? This seems almost begging for a defamation suit.

    1. “This procedure was fully vetted by Harvard’s lawyers, who all graduated from Harvard.”

  18. Better an hundred innocent men be hung than one guilty man go free!
    Oh, wait a minute….There are NO innocent men. They’re all guilty of Patriarchy or having a yucky penis or something. So, never mind. Just hang em any chance you get.

    1. Those who support this kind of kangaroo court claim that one in five women will be raped during their lifetimes,

      One in five

      They never mention the fact that this means one in five men are violent sex offenders.

      So that means there’s at least two on this page. Which one of you is it? (It’s not me, of course…)

      Anybody who isn’t outraged at this claim has just been too beaten down to protest.

      1. Um, I’m pretty sure Epi and Warty Hugeman have already moved on to another thread, so your math is suspect.

      2. Its hard to know how many men are rapists.

        Its possible that the percentage of student rapists is less than 20%, if universities are hosting serial rapists.

        That would be a good question:

        “So, since 1 in 5 of your female students are raped, does that mean that you are admitting large numbers of male rapists, or that you are admitting serial rapists?”

        1. “So, since 1 in 5 of your female students are raped, does that mean that you are admitting large numbers of male rapists, or that you are admitting serial rapists?”

          Or that their stats are completely made up bullshit.

      3. It could be a few guys doing a lot of raping, too.

        1. All they know is ball…and good…and rape.

      4. One in five

        Unpossible. We have been repeatedly assured that college students are totally protected by campus police forces who super-efficiently prevent all campus crimes, and therefore students have absolutely no need to carry any self-defense devices, particularly anything as unliberal as a handgun.

  19. The rapist witch-hunt hysteria really is a tragicomedy to watch unfold. Colleges competing to bolster their rape stats as proof of the seriousness with which they handle accusations (without, somehow, exposing their inability to do anything proactively about it) really highlights how hilariously derpy it’s gotten.

  20. Were the same people upset about this upset when the NFL disciplined Ben Roethlisberger for a sexual assault the local DA and police never charged him with?

    1. According to Wiki, FWIW, the alleged assaults did not place in Pittsburgh where the local DA would have jurisdiction.

    2. Since I can infer that you are suggesting that holding disparate views on those two incidents is a mark of moral hypocrisy, where do you yourself fall on the upset/not upset binary concerning these two cases?

      1. I think private institutions should be able to associate or not with whoever they want using the procedure that suits them.

        The only thing libertarian in all this is the DOE pushing such institutions to do so.

        1. So they can impose Title IX on every school but those schools don’t have to grant due process rights that the criminal justice system uses?

          Sorry, but they can’t have their cake and eat it too. If they take government money then have to treat people like the government is required to.

          1. Wow, do you think that should apply generally? I mean, the NFL takes quite a bit of government money itself.

            1. The NFL does? Please explain.*

              *City-funded stadiums and tax breaks are not the same as GSL’s, Title IX, DOJ oversight, etc.

              1. I’m curious to hear your theory about how Title IX or ‘DOJ oversight’ makes this different.

                1. Because the DOJ is,imposing on the schools to create their,discipline,policies and in many cases are overseeing them. As for Title IX, that has created an entirely different campus dynamic than what existed prior to,it’s enactment.

                  Last,I checked, other,private entities weren’t subject,to federal oversight like these universities. Therefore,I believe,they should follow criminal due process standards established by the group (FedGov) that oversees every other component of their administration.

                  1. So once the government starts dictating in one area it should be empowered to, and should act to, dictate in others?

                    The Feds have tons of laws that Harvard and the NFL are subject too.

                    1. You’re like talking to a brick wall. Why don’t,you go back and re-read my posts about consistency and how these schools shouldn’t be able to have their cake and eat it to when it comes to following government procedures in all areas.

                    2. So you are saying that when an institution takes government money and has to abide by X, they should have to also abide by Y, Z, and whatever else the government wants to toss in for the sake of ‘fairness?’

                      Wow

                    3. That’s exactly what mom saying.

                      BUT, I also,think,institutions,should be able to tell the government to totally fuck,off and not be subject to their arbitrary rules. Unfortunately,the ratchet only goes one way in that respect.

                    4. And if this option existed I think more and more places would exercise it to free themselves of the yoke of bullshit oversight, title IX and a ton of other restrictive bullshit that serves no,purpose other than to water down the educational experience and waste a ton of school money on compliance.

                    5. I appreciate the civil discussion, and don’t want to keep you much longer but I’d like to tease this out with one more question. Remember the woman who had to join a union to get paid Medicaid for taking care of her relative? Wouldn’t, under your idea, she have to just suck it up (so to speak) and join if she wanted that goverent money (after all, the money was conditioned on her following X and Y, why can’t the state add ‘Z’ union membership)?

                    6. No, because the government compelled her to join the union or pay a fee to it when she expressly did not want them representing her.

                      Also, I think as soon as there are challenges to mandatory pubsec union participation in front of the Supreme Court, the unions will be done.

                      Finally, there’s a big difference in compelling someone to join or pay a union to represent them and to abide by existing federal regulations as they apply to an industry. Because the last time I checked there was never a federal law that required people to join a union. Those are departmental policies agreed to in collective bargaining agreements.

                    7. I guess that’s consistent, but so many organizations take government money that would result in a vast increase in day to day government intervention

                    8. Sorry, posted this before I saw your second that answered this question (it’s a good answer btw, I’d accept it if I had more faith in institutions giving up federal cash so they can toss that yoke).

    3. Kinda hard to press charges when your witness and alleged victim refuses,to cooperate with the investigation.

      1. For sloopy and widget, why is what you mention relevant at all?

        1. I mean, the fact that the local DA (where the alleged incident would be tried) and police declined to charge him makes Big Bens subsequent suspension that much worse.

          1. Not necessarily when you sign a contract with a specific personal conduct policy that states you will face suspension for even a hint of inappropriate action that might put the league,in a negative light.

            1. Every student is given their schools policies in this area too, in fact that’s what this article is about, the design and promulgation of Harvards new policy. When students sign they agree to abide by these policies.

              1. Gee thanks. It looks like you almost wrote, verbatim, what I said earlier in the thread about how they’ll justify this.

                1. So you knew they essentially are doing what the NFL does?

                  Look, these are inane policies and were I in charge I would give Harvard men and Big Ben more process, and to the extent this is happening due to DOJ pressure that’s terrible.

                  But when all is said and done if a private institution wanted to give their customers no process other than what is contractually agreed upon by both parties, then that’s their right. Harvards not doing anything that the NFL and most other organizations do every day, this criticism is just aimed to feed conservatives need to criticize ‘liberal colleges.’

        2. http://sports.espn.go.com/nfl/…..id=5121614

          FTA: “The Personal Conduct Policy makes clear that I may impose discipline ‘even where the conduct does not result in conviction of a crime’ as, for example, where the conduct ‘imposes inherent danger to the safety and well being of another person,’ ” Goodell stated in his letter to Roethlisberger.

          So he agreed,to the policy in a private enterprise that is not subject to DOJ oversight or other federal regulations like Title IX. I’m sorry but that’s not the same at all.

          1. And these schools usually have their policies in their student handbooks every student gets.

            I’ve answered your Title IX question above, but I’ll add that the NFL collective bargaining agreement is indeed subject to, and intertwined with, federal laws (such as the NLRA)

            1. You really didn’t answer my Title IX question though.

              As for the NFL and NFLPA contract, they run afoul of federal law in my opinion when they restrict 18 year olds from entering the workplace but the contract exempts them from the law. So they’ve essentially carved out exceptions to the law in their CBA. so I’m not sure what their selective enforcement policy to the law is in other areas.

              1. Title IX says schools that take federal money can’t discriminate against women. Are you saying it should be further controlling of any institution that takes federal money to require certain process before customers (and employees?) can be shown the door or internally disciplined?

                1. No. I’m,just,saying that they can’t have their cake and eat it too. If they have all these federal,guidelines and oversight then they ought to,follow,the law as it applies to evidentiary processes and criminal prosecutions for criminal behavior.

                  1. So all agencies that contract with government should have to follow all the rules governments have to?

                    1. On for fucks sake. If I say yes will you next say that every company,that drives on government roads should be subject to,government oversight or will you say that all companies,that use electricity from a government power plant be subject to government oversight in their contracts and employee discipline?

                      Because I know you’re gonna just keep pushing and pushing and pushing until I tell you I’m finished with you.

                    2. I’m trying to apply your principle generally, not just to institutions I might not like.

                2. That is not what Title IX says, fool.

                3. Actually, I believe Title IX says schools that take federal money can’t discriminate on the basis of sex, not against women, per se. And if I understand the law correctly, it says that policies that significantly disadvantage one sex over another can constitute discrimination. If that’s the case, then a policy that singles out one particular offense that overwhelmingly is applied to one sex for a lack of controls could certainly well be considered discrimination.

    4. On the face of it, there’s not a whole lot of reason to be upset – it’s a private institution, whatever. Where it becomes an issue is whether the accusations are mediated in a gender neutral way. If a male accuser of sexual assault is afforded the same protections, I see little need for complaint, except for the lack of legal recourse for the accused. The accused is welcome to bring a defamation suit against the accuser/the university, but being a civil suit, the burden of proof is now inverted – the accuser must prove their innocence, rather than their non guilt in a scenario that could see them substantially losing out on future income, etc. In the case of Mr. Roethlisberger, I have similar reservations. the NFL conduct policy has an appeal process, but that appeal process is just as arbitrary as this – it goes to the commissioner, an interested party. If the NFL appeal process went through a fair and open system of dispute arbitration, there’s no concern. Likewise, the university’s system needs to have a fair and open process, clearly articulated expectations of conduct, a fair burden of proof, and gender neutral application (If they’re both drunk, did they rape each other?).

      1. One little-known situation nationwide is the huge amount of domestic violence in lesbian relationships. How much crossover there is for instances of such DV to be considered ‘sexual assault’ I do not know. But from what I’ve seen, the champions of such policies as Harvard’s only picture this kangaroo court happening to arrogant fraternity-boy types. If a Harvard woman student (especially a gender studies major) gets accused of sexual assault by another woman, the resulting twisted logic of outrage might just explode brains in every direction.

      2. Why shouldn’t a private institution be able to discriminate along gender lines as much as it wants?

  21. Okay, spamming the evening threads because I have become unreliable about checking H&R due to work and baby. Austin area Reasonoids: My wife and I will be in your town Labor Day weekend (Sunday thru Tuesday night). I know Negroni Please and entropy_factor had expressed a desire to plan a meetup, probably Sunday night. My handle now has an email address I check. Email me if you have any interest. And if not, she and I will just eat good food, drink a lot and find ways to entertain ourselves. Last time we were in Austin we came home with a fetus. Help a brother out, give us something else to do.

    1. Last time we were in Austin we came home with a fetus.

      There’s a deep-dish pizza joint in Austin?

  22. I’ve always thought it rather perplexing that universities are trumpeting to the skies their status as rape factories.

    “Send your daughters here! We have a terrible rape problem! She will have at least a 20% chance of getting raped! Our campus is so overrun with rapists that we’ve had to throw away due process to try and keep up!”

    The only reason their admissions haven’t crashed and their marketing departments haven’t committed mass suicide is that nobody believes them.

    1. They don’t care about real numbers. They only,care about,progress.

      “Send,your daughters,here. We have a strict disciplinary process in place that has reduced campus criminal sexual,assault claims by 50% in the last three years!”*

      *nevermind the fact that the criminal complaints have dropped while the complaints to,school admins have tripled because,it’s easier to punish someone when no,evidentiary,standards,exist.

  23. Harvard has every legal right to do this, just as it would have every legal right to require female students, but not male students, to remain virgins until marriage, and to expel female rape victims for having lost their virginity before marriage.

    And if that means that a Harvard degree becomes worth less than a square (let alone a roll) of low grade toilet paper- them’s the breaks.

  24. So Harvard follows the Cardassian Articles of Jurisprudence?

    What is important is ensuring that a politically acceptable somebody publicly pays.

    http://en.memory-alpha.org/wik…..isprudence

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