The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We express our thanks, again, to Eugene for his invitation to blog, and to readers and commenters for reading our posts.
As our book shows, the procedures that most colleges and universities use in sexual assault cases are so structurally unfair to accused students—with some exceptions at big-money sports programs and religious schools—as to call into question the schools' commitment to pursuing the truth. What can be done about this?
Two points to start. First, there needs to be an acknowledgment that a problem exists. If our book serves no other purpose, it documents dozens of cases—most of which have received little or no attention in the media or higher-ed circles—in which colleges have used unfair procedures to wrongly punish accused students. We have no reason to believe that the cases we've uncovered are isolated occurrences. Even Brett Sokolow, one of the stoutest defenders of the new campus regime (from which he has profited richly), has conceded that "almost all" of the due-process lawsuits must have been "filed by 1 percenters"—meaning students from wealthy families. Most wrongly accused students whose parents' earnings fall into the bottom 99 percent are out of luck.
Second, given the record of the past six years, it seems unlikely that college and university administrators will act to prevent grave injustices unless forced to do so. This past week, for example, two journalists who have done excellent work on this topic, Reason's Robby Soave and Watchdog's Ashe Schow, highlighted a recent trend in which defenders of the campus status quo have cited the shortcomings of typical college investigations as justification for degrading the already minimal protections for the many innocent accused students.
Schow, who reported on a conference of higher-ed administrators, paraphrased one official as noting that "the lower standard [of proof] was easier for administrators because they don't have the expertise of law enforcement." Soave noted [adding bold for emphasis] how a consultant on higher education compliance issues, Andrew Morse, remarked, "The lower threshold as articulated in guidance in 2011 by the Office for Civil Rights provides the foundation for a likely outcome of responsibility that will protect survivors of sexual violence while still not prohibiting the individual found responsible [from] seeking educational opportunities later." As Soave noted, it seemed like for Morse, "It's not about finding the truth, or administering justice. The purpose of the guidance is to make it more likely that accused students are found responsible, whether or not they have done anything wrong."
These sentiments resembled that offered in a January "Room for Debate" piece in the New York Times. Professor Nancy Chi Cantalupo, defending the Obama administration's policy, asserted that higher standards of proof "require evidence of a quantity and type that is virtually impossible for schools to access, as they lack court powers such as the subpoena which would compel the production of evidence." But while arguing that campus systems are not competent enough at finding the truth to do justice to accusers unless the burden of proving guilt is minimal, Cantalupo implied that doing justice to students who are wrongly accused is of no great concern.
Since universities aren't going to act on their own to do justice, the initiative must come from elsewhere.
The Trump administration could make a first, positive step toward campus fairness by withdrawing the Obama Education Department's 2011 "Dear Colleague" letter and the subsequent 2014 OCR guidance. Since the Obama administration chose to bypass the notice-and-comment rulemaking requirement in issuing its reinterpretation of Title IX, that reinterpretation could be junked just as easily. Universities would, to be sure, remain under heavy pressure from campus activists and Title IX administrators to retain unfair procedures. But at least they could no longer claim that they were merely complying with federal commands. And the new OCR head, whose identity is not yet known, should be committed to interpreting Title IX fairly, rather than following the Obama appointees' path.
The courts, meanwhile, should give no deference to the decisions of academics—or bureaucrats hired by academics—about whether a student committed a felony offense. The July 2016 Second Circuit decision we discussed Wednesday, which preliminarily upheld an accused male student's Title IX claim that Columbia discriminated against him on account of his gender, should be a powerful precedent for railroaded students to use. The mixed record of such lawsuits in other lower courts suggests that the chances in court of a student wrongly found guilty depend mainly on which judge is assigned to his case; about half have prevailed. A wise Supreme Court decision in such a case could bring more justice and consistency alike in lower courts.
If all that a reader knows about campus sexual assault claims comes from the breathless coverage from outlets such as the New York Times and the Huffington Post, he or she will have the false impression that colleges sometimes discriminate against accusers and, occasionally, handle such claims fairly. It has also been a hallmark of most mainstream media coverage of campus sexual assault to skip over the unfair procedures that colleges and universities actually use to judge accused students. Journalists who take this path fail their readers.
Although hardly a perfect comparison, the often fantastic day-care child sex abuse allegations of the 1980s and 1990s present many parallels to the current campus frenzy. They include sensationalistic media coverage, true-believer activists, calls to change procedural norms to get more guilty verdicts, and gross injustices to wrongly accused people. Media exposure by Dorothy Rabinowitz and others of the abuses in many such cases helped to bring the era to an end. Because all campus tribunals operate in secret, their abuses are far harder to detect than were those in the public criminal trials of day-care cases a few decades ago. But there are mountains of evidence that mainstream publications have virtually ignored. Perhaps some truth-seeking journalist will bring them to the public's attention.
Finally, parents and students need to be more aggressive in protecting their rights. It seems unlikely that many parents closely look at the disciplinary procedures of an institution before paying for their child's application; they should do so. While virtually all institutions' policies come up short on fairness, a significant degree of variation exists, especially regarding state law.
Moreover, accused students too often fail to take an obvious step: immediately hire a lawyer. While the vast majority of colleges either forbid lawyers altogether from their adjudications or neuter them by denying them permission to speak in the hearing, a lawyer can at least press the college to be more reasonable, warn it of its vulnerability in court if it acts unfairly, and document procedural abuses to be challenged in any lawsuit.
For an example, consider a case involving a former Vassar student named Peter Yu. After a February 2012 crew team party, Yu and a female student flirted, stopped at a bar and went back to Yu's room. They briefly had sex, but the female student said she didn't want to go any further. Three hundred sixty-four days later, on the last day allowed under Vassar rules, she filed a sexual assault claim, alleging that she was too drunk to have consented to the sex. By the time Yu, who also was intoxicated on the night in question, was notified by Vassar's Title IX office of the complaint against him, it was too late for him to file a counter-claim. Then, despite giving the accuser, the daughter of a Vassar professor, a year to file charges, Vassar took eight days to investigate, conduct its hearing and decide to expel the accused student. It also scheduled the hearing for a day when Yu's roommate could not testify due to a conflict. He was clearly a critical witness, because he was the last person to see Yu and the accuser together on the night in question.
If the accused student—a Chinese national whose family was thousands of miles away—had a lawyer from the start, the lawyer would surely have challenged the accuser's manipulation of the deadline to avoid a counterclaim. The lawyer might also have urged the Vassar panel to look at the accuser's Facebook messages, which implied that she had initiated the sexual encounter; and to find witnesses who had seen the couple together at the bar and could testify to whether the accuser was too drunk to consent; and to postpone the hearing by a day so that Yu's roommate could testify. At the very least, a lawyer could have obtained a formal statement from the college documenting its refusal to do even the most obvious investigating.
The central mission of colleges and universities is—or once was—pursuit of the truth. They certainly have an obligation to pursue the truth when they undertake to decide whether one of their students has committed what is a felony offense in all 50 states. But in the context of campus sexual assault allegations, the overwhelming majority of the many schools discussed in our book have treated the truth with something close to contempt.