Title IX

23 Cornell Professors Say Their School Violated Due Process

Faculty take a stand against an unfair investigation.

|

Cornell University
Walter Arce/Dreamstime.com

Twenty-three Cornell law professors filed a motion last month to submit an amicus brief in the case of John Doe v. Cornell University. The suit deals with whether the university erred in adjudicating a sexual assault case between two students (called Sally Roe and John Doe in the legal proceedings). The professors argue that Doe was not given the opportunity to confront his accuser, and that the university therefore denied him due process.

In August 2016, Roe alleged she was raped while incapacitated at an off-campus fraternity party. She filed a complaint four days later. Within a week, Doe "filed a cross-complaint, alleging that Roe had initiated additional sexual activity without his affirmative consent," per the lawsuit. Then, in October of that same year, Roe filed yet another complaint saying Doe's grievance was retaliatory and not grounded in fact.

It gets even messier. Roe's own retelling of how much she drank that night was inconsistent between reports, depending on who was interviewing her. Witnesses claim that Roe had broken up with her boyfriend two days prior and was "really upset about this guy…she wanted to meet somebody new." Roe disputes that account.

In May 2017, Cornell found Doe responsible for the rape and for filing a retaliatory complaint. He received a two-year suspension. Doe appealed, claiming that in the initial proceedings he did not get the chance to ask his accuser certain questions or have another person ask such questions on his behalf during the disciplinary hearing. Per the brief, Doe's questions would have centered around "Roe's plans for the party, her recent breakup with her boyfriend, or her inconsistent statements."

Cornell's stated policy is that "The Hearing Chair will approve in substance all questions or topics that are relevant and that are not prohibited by these procedures or applicable laws, unduly prejudicial, or cumulative of other evidence." The questions provided by Doe meet these standards, according to Doe and his legal team, but they were not asked of Roe.

The law professors note that the right to ask questions of an accuser is not just guaranteed by Cornell's procedures but is a fundamental underpinning of the American legal system, one "essential to truth-seeking and a fair adjudication."

They also discuss the broader significance of ensuring proper due process for accused students, and they "encourage this Court to continue to serve as an effective check on colleges and universities, which have been vested with authority to inflict life-altering punishment in this controversial area."

Clearly, rape is life-altering, too. But that's one reason why a fair adjudication process matters so much: If Roe was raped, and Doe is in fact guilty, surely we don't want him to be let off the hook due to a legal error. Yet that could happen if he successfully appeals.

And if he's not guilty, he's been denied due process and profoundly harmed. As the professors write (relying on Goss v. Lopez), "a student found responsible 'may face severe restrictions, similar to being put on a sex offender list, that curtail his ability to gain a higher education degree…Thus, the effect of a finding of responsibility for sexual misconduct on 'a person's good name, reputation, honor, or integrity' is profound.'"

In other words, neither due process protections nor sex crimes should be taken lightly. It's crucial that colleges consider how fair their adjudications are when students' futures are hanging in the balance.

This isn't the first time professors have showed concern about their students' rights. In 2014, 28 faculty members at Harvard Law voiced their concerns in the Boston Globe about Title IX, the federal statute dealing with gender equality that requires universities to investigate sexual assault. In 2015, 16 law professors from the University of Pennsylvania published an open letter that said, "Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our peril."

Any hearing with severe consequences should allow an accused person to challenge the accusations and the accuser's credibility. And especially with a crime as serious as rape, we can't afford to have legal clumsiness leading to adjudications gone awry.

Advertisement

NEXT: How We Screwed Up Nuclear Power

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Roe, Doe, Roe your board!
    Make whatever accusations
    Ya think might maybe float!
    But in my gut,
    I know she’s a slut!

    1. Do you know mendosi stevenson story?he earn 3450$ every month at home just working few hours on internet if you interested to join this work so now open this link and learn how to join

      look here for more details http://chilp.it/410588f

    2. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

      This is what I do… http://www.onlinecareer10.com

    3. Everyone can procure 350$+ day by day… You can gain from 4000-8000 a month or significantly more on the off chance that you fill in as an all day job…It’s simple, simply take after guidelines on this page, read it precisely through and through… It’s an adaptable activity however a decent eaning opportunity.

      For more informatiovn visit site.. http://www.profit70.com

  2. Remind me again, why are colleges handling criminal trials instead of teaching?

    1. Exactly!
      Kornell Kangaroo Kourt

    2. Federal money, ultimately taken from taxpayers.

    3. I think they handle it for the same reason the NFL does with their players. There are certain ethical standards that the organization demands, and violation of those standards leads to suspension.

      I don’t know whether I support the NFL’s (and Cornell’s) policy here. But I do know that neither organization is interested in due process. Tom Brady’s suspension a couple years ago was a perfect example. Ultimately he lost the court battle because they ruled that the commissioner could basically do whatever he wanted because the contract said he could. I wonder if the same kind of legal mechanism would apply here.

      1. ” I wonder if the same kind of legal mechanism would apply here.”

        I’m sure Cornell could kick Doe out for no particular reason. But they shouldn’t be allowed to tarnish his reputation and claim it was because of rape without allowing him a defense.

    4. It is not a criminal trial when a university handles it. It’s a disciplinary hearing. And it doesn’t seem inappropriate to me. An organization should be free to discipline its members without having to wait for a criminal trial to play out. And the burden of proof shouldn’t necessarily be the same. Corporations don’t wait for a criminal trial before firing those who embezzle. And they don’t use a beyond-a-reasonable-doubt standard of proof. That said, any allegation of rape that has any merit at all should also be referred to law enforcement and the process universities use today to adjudicate these cases are Kafkaesque.

      1. A publicly funded college is not a private company.

        A disciplinary hearing (which results in a dismissal( that doesn’t adhere to at least SOME due process rights is a lawsuit waiting to happen.

        1. Start making extra cash from home and get paid weekly… By completing freelance jobs you get online… I do this three hr every day, for five days weekly and I earn in this way an extra $2500 each week…

          Go this web and start your work.. Good luck… http://www.jobs63.com

  3. I think there is a lot of merit to the argument that being falsely labeled a racist can be more harmful to your mental health and more destructive to your life and future than being raped can be. I know saying that is verboten in polite society, but it is true.

    1. I think there is a lot of merit to the argument that being falsely labeled a racist can be more harmful to your mental health and more destructive to your life and future than being raped can be.

      The “I blacked out drunk, woke up in a puddle, and 3 weeks later filed charges.” sort of ‘being raped’ yes. The “I remember him hitting me and I woke up in a hospital bed, and took a week before I could walk to the police station and file charges.” no.

      That rape is distinct from any other kind of assault is a huge problem and inequality under the law, especially as women gain(ed) equal footing as men under the law otherwise; but nobody except libertarians and even more fringe MGTOW-types are going to salute that flag.

    2. I think there is a lot of merit to the argument that being falsely labeled a racist can be more harmful to your mental health and more destructive to your life and future than being raped can be

      On the contrary, I think there is zero merit to that.

      I think there’s a reason we’ve heard absolutely no rape victims ever say “whew, thank god I was raped instead of being called a racist”.

      Lemme guess- never been raped, probably don’t know anyone who has. Please do go on making pronouncements about what rape does to a person compared to other injustices.

      but it is true.
      Oh, well if you say it is.

      1. I think he meant rapist not racist. And if so, he’s absolutely right, probably even in the circumstances listed by the second poster. If you are raped, you are a sympathetic victim. You still have your reputation, friends, your job and your freedom. If you are falsely labeled a rapist, you are ostracized and you lose all of these – you basically lose everything.

        Lemme guess – never been falsely accused of rape, probably don’t know anyone who has. Please don’t make pronouncements about what a false rape accusation does to a person compared to other injustices.

  4. So, womyn are the same as men, and deserve complete parity in all social, economic, and legal measures.

    But women are especially susceptible to sexual abuse, and deserve extreme bias in protection and in punishment of those accused of abuse.

    Sign me, Confused.

    1. Some people demand compensating blacks people for 400 years of slavery. How do you repay 400,000 years of sexual abuse by men going back to Homo Erectus? “Erectus”? Even the name of the species conjures images of sexual abuse.

      Idiocy knows no limits. I’m sure that there a people who will read the paragraph above and thought “Right on!”

      Universities were originally cloistered to keep out heresy as the purpose of the university was to defend the faith. The old faiths may have disappeared but the structure intended to enforce orthodoxy has endured. It’s time to stop funding these intellectually vapid halls of conformity.

      1. How do you repay 400,000 years of sexual abuse by men going back to Homo Erectus? “Erectus”? Even the name of the species conjures images of sexual abuse.

        Actually, forcible rape/coerced sex is observed in primate species that share common ancestry with Humans well before Homo erectus. Depending on how vaguely you define rape, the whole hive structure of untold numbers of invertebrates constitutes rape.

  5. Does John Doe have a contract with Cornell? Probably not, so he has absolutely no grounds to object to being raped far worse than anything that he’s accused of. Legally, they can expel him on any grounds except race, color or national origin.

    As long as people patronize institutions like Cornell this will continue. Stop going to these intellectually incestuous PC monstrosities.

    1. Rape is a criminal offense and should be charged and adjudicated in a criminal court, not a kangaroo court. It matters not where, in any given State, the rape occurs. The trial should take place in the courts of that State, not in a university hearing without due process, legal representation, and the right to challenge and question the accuser, and with a jury of one’s peers, not a bunch of foggy headed professors.

      1. Good point. I also was wondering why it is that a college, having determined that one of the students committed the crime of rape, merely “suspended” the rapist for two years. Why not an expulsion and reference to law enforcement for criminal prosecution? Rape is a very serious crime, and if this individual truly is a perpetrator, he should be taken off the streets.

        One possible answer, of course, is that what Cornell describes as “rape” is not what the rest of the world describes as “rape.” And to me, that is just as offensive as the denial of due process. You can’t call somebody a child molester unless he or she actually molests children. You can’t accuse somebody of committing an infamous crime, and then claim that “your definition” of the infamous crime is nowhere near everybody else’s. If the “rape” is not a “rape” as defined by the criminal law, it is NOT a rape, and labeling the alleged perpetrator as a “rapist” is defamation per se.

        1. If you listened to Cathy Young debate “rape culture” you would have seen this manifest. Michael Kimmel pretty much boasts of the accomplishments that have been made in “educating” people as to what behavior is normal and what is rape.

          They have a two pronged strategy for sounding the alarm: First, educate students on campus that any unwanted sexual contact is rape, including sex when you have consumed alcohol. Then conduct some carefully crafted surveys to find out just how prevalent rape is on campus by asking if students have ever had someone touch or attempt to touch them in ways that they may not like…. I.E. rape and attempted rape.

          Then they report that between 14 and 25% of all college women have been raped (as defined by their new version and including “attempted rape” which might mean that a guy they didn’t like made a pass at them when they were drunk and they turned him down).

          When asked about this a couple of times, Kimmel didn’t really understand the point. He said there was a lot more work to do in redefining expectations of sexual behavior. His stated goal was to ensure that everyone saw any sort of unwanted sexual contact (even if the “unwanted” part only became apparent days later) as a rape by a man, driven by masculinity that permeates societal attitudes and prevents women from being treated as anything other than subhuman conquests. (only slightly exaggerated, that bit).

          1. I guess this would be a case of “defining deviancy UP”. A pat on the butt is a violation of someone’s body but it is not rape. Calling them both rape makes no sense unless the object is simply to find another club to use on men.

            In the1960’s students rebelled against the idea that only men had strong sexual urges and argued that women were as desirous of sex as men were. Now, we have reverted to the view that men are always the aggressors and women are merely passive victims of male sexual pathology. Anthony Comstock meets Cornell University.

            It used to be a crime to send any information regarding sexual activity through the mail. Pamphlets on contraception were seized and both the senders and recipients were jailed. It looks like we’re approaching Comstockery Part 2.

      2. Don’t blame the professors. It’s the administrators, many of whom are steeped in SJW ideology and would not have a job at all without said ideology.

        These 23 professors are doing the right thing by speaking out against the administrators’ wrongdoing.

        1. Don’t blame the professors. It’s the administrators

          Many professors participate also, essentially all from the grievance studies departments and most from the humanities generally.

      3. An organization should be free to discipline its members without having to wait for a criminal trial to play out. The problem with these cases is that they are a sham and the burden of proof is ludicrously low.

      4. “Rape is a criminal offense and should be charged and adjudicated in a criminal court, not a kangaroo court”

        Rape is also a tort, and at most schools, is also a violation of the school’s disciplinary code. All at the same time..
        The university has a right to determine for itself who should and who should not be affiliated with it, and they’re well within their rights to say “no rapists allowed”.
        This means that a rapist could experience jail time, having to pay cash money to the victim, and getting kicked out of school, all as a result of different proceedings that proceed by different rules.
        Yes, the standards to obtain a criminal conviction are different. This is because having to be confined to a state correctional facility and having to switch to a different school are different levels of restriction of freedom, and we want to meet higher thresholds for the more severe punishments.

    2. I assume the school entered into a contract for him to be there, probably in exchange for a large sum of money. You don’t just “be” in college.

    3. “Does John Doe have a contract with Cornell? Probably not, so he has absolutely no grounds to object to being raped far worse than anything that he’s accused of. Legally, they can expel him on any grounds…”

      Is this true? Because I find it hard to believe that a student could sign up for classes, pay tuition, and then all of a sudden be dumped mid-semester for no particular reason. Or that they could complete their 120 credits and then the university arbitrarily decide not to award him a degree. I’m skeptical that Cornell holds absolute and unfettered power here. People attend universities with certain expectations of what they get in return, and it seems that this is something that could be violated.

      Having said that… these places always have a student handbook with certain expectations and rules re: misconduct. So they may be able to hang their hats on that.

      1. If Doe violated any of the terms of his acceptance to Cornell, as judged by Cornell, then he’s out his tuition, out of Cornell and out of luck. If you want to end this, then end Cornell University. If one or two Ivy League shitholes get abandoned by students then the rest will see the light.

  6. The SJW chicanery in higher ed is bad enough, but the larger problem is that these institutions are quasi-government entities. I don’t want to give a rat’s rear about how Cornell runs their school or even who they’ll take, but I suppose it is my business if I’m obligated to pay tax dollars that inevitably gets siphoned off by the Maoist aholes running Cornell.

  7. Yet another example of why letting untrained amateurs attempt to investigate and prosecute actual crimes is a bad idea. Campus administrators are (barely) capable of investigating academic infractions like plagiarism or cheating. They have no business trying to replace professional police, prosecutors and judges.

    1. That said, our professional police, prosecutors, and judges are often quite corrupt in ways big and small.

      It’s not the so-called “professional” people we should focus on but the process.

      The same is true for even quality assurance in manufacturing: focus on improving the process, not relying on expert people.

  8. No one needs 23 different Cornell professors.

    1. You do if you need full gender representation

  9. Twenty-three Cornell law professors filed a motion last month to submit an amicus brief in the case of John Doe v. Cornell University. The suit deals with whether the university erred in adjudicating a sexual assault case between two students (called Sally Roe and John Doe in the legal proceedings). The professors argue that Doe was not given the opportunity to confront his accuser, and that the university therefore denied him due process.

    So where does this “private institutions must give due process before making decisions” end? Will there be requirements for “due process” for job terminations? For salary negotiations? For deciding where to go for lunch? For the kids’ allowance?

    I think this is another example of too much government involvement in private matters. Cornell shouldn’t receive government funds, the government shouldn’t impose Title IX on them, and the government shouldn’t tell them how to adjudicate disputes between students.

    1. “…the government shouldn’t tell them how to adjudicate disputes between students.”

      This isn’t a ‘dispute between students’, this is an accusation of rape. A criminal matter.

      1. This isn’t a ‘dispute between students’, this is an accusation of rape. A criminal matter.

        Also, 23 Cornell law professors aren’t total buffoons when it comes to contract negotiation, Constitutionality, and the law. Cornell likely has a handbook clearly delineating the process of dismissal surrounding alleged criminal acts. You pay the tuition, Cornell hands you a book saying that in exchange for the tuition, you’re required to abide by the policies. Then what if Cornell circumvents them? Fraud? If the kid’s a protected class or has got a dime of Federal money to his name… something more federall-y than fraud, like ‘violation of due process’ is right on target.

        Not saying I disagree with the fact that Title IX should be revoked and that they shouldn’t be taking public money for a private function but that scope is so far beyond anything resembling a case you’d be retarded to bring it up seriously/honestly.

      2. “This isn’t a ‘dispute between students’, this is an accusation of rape. A criminal matter.”

        Title IX is civil law, not criminal.
        The same act can be covered by both civil law and criminal, and have separate civil and criminal adjudications (see, for example, OJ Simpson… not guilty of murder in criminal court, but guilty of wrongful death in civil court.)

        This means that a campus rape might create criminal liability for the rapist, if the state can prove the crime. It might also create civil liability for the rapist, if the victim can prove the tort. It also might create civil liability for the school, under Title IX, if the school fails to act to prevent or remediate it, and the victim can prove that.

        1. Yeah, OJ was guilty but double jeopardy through the civil courts is completely unjust. Two wrongs don’t make a right.

          If there is inadequate evidence to prove a crime such as rape (or murder) in a criminal court, it is unjust to use our fucked up civil legal system to essentially convict somebody by a flip of a coin – or even worse in college kangaroo courts where guilt is usually predetermined.

          1. Every system will have errors in it. The criminal justice system is set up to minimize the error one way… false convictions… at the expense of leaving victims unsatisfied. That’s a choice that was made and most people agree with that choice… the weight of a false criminal conviction is heavy, and thus we’re willing to leave guilty people unpunished to minimize the number of false punishments.

            But other adjudications, which do not involve deprivation of liberty, proceed by different rules because the “price” of false positive is considerably lesser. This is proper. As an example, an employer does not need proof beyond a reasonable doubt of wrongdoing to terminate an employment relationship. They can terminate an employee for any reason not specifically prohibited by law, and don’t generally need to justify their decision to do so to anyone else. If person A decides to end their informal romantic relationship with person B, they don’t have to hold a public hearing to hear evidence before deciding. They can do so even if the evidence of wrongdoing is thin, or poorly understood, or non-existent. The efforts that must be undertaken to achieve fairness vary with the stakes. Having to pick another school to attend isn’t trivial, but it also isn’t in class with confinement to a correctional facility for a period of years, either.

    2. the government shouldn’t impose Title IX on them,

      The government didn’t impose this on schools. It was collusion similar to the EPA’s Sue and Settle strategy. Universities knew they couldn’t justify their preferred sexual assault program (since it’s insane) and trying to do so relying on their own judgement would cause them to lose credibility and their jobs. So their activists worked themselves into government to enact it there with the full support of Universities. The administrators then happily implemented the most extreme interpretations using the “risk” to overwhelm any opposition from oversight. In this way the administrators never had justify the policy on its merits, they only had to do so based on the risk. The former is scoffable, the latter is unquantifiable and thus unchallengeable.

  10. This must why people jump into the gorges.

    1. My brain read “gorges” as a combination of “orgies” and “ogres.”

      I was amused.

    2. “Somebody went splat.” — friend of mine on a fine spring day in 1983, when someone asked why all the emergency vehicles were heading toward the Stewart Ave. bridge.

  11. Doe filed a cross-complaint, alleging that Roe had initiated additional sexual activity without his affirmative consent.

    Nice try, but she wasn’t initiating anything, you were raping her hand.

  12. I know this discussion will ultimately deteriorate into a “THIS IS WHAT’S WRONG WITH HIGHER EDUCATION” rant like it always does —

    But isn’t it noteworthy that 23 of the “marxist”, “socialist”, “maoist”, ” commie” indoctrinators are sticking up for due process here? Should we ignore that the fact that the AAUP is one of the strongest due process advocates in the higher ed space? Or are we going to lump everyone together into one big guilty party?

  13. It gets even messier. Roe’s own retelling of how much she drank that night was inconsistent between reports, depending on who was interviewing her. Witnesses claim that Roe had broken up with her boyfriend two days prior and was “really upset about this guy…she wanted to meet somebody new.” Roe disputes that account.

    She reminds me of that crackhead I turned down after she was kicked out of the homeless shelter for spending a night in detox.

  14. And if he’s not guilty, he’s been denied due process and profoundly harmed. As the professors write (relying on Goss v. Lopez), “a student found responsible ‘may face severe restrictions, similar to being put on a sex offender list, that curtail his ability to gain a higher education degree…Thus, the effect of a finding of responsibility for sexual misconduct on ‘a person’s good name, reputation, honor, or integrity’ is profound.'”

    You know how libertarians believe we don’t need anti-discrimination laws, because bigots make themselves uncompetitive by denying themselves the labor of talented people. It’s reaching the point where I want to start a publishing company and invite everyone in my metropolitan area who is on the sex offender list to work for it.

    1. Bring your kid to work day ought to be interesting.

  15. “The professors argue that Doe was not given the opportunity to confront his accuser, and that the university therefore denied him due process.”

    Confrontation of witnesses is one of those rights that is directly listed in the Constitution. It’s in the sixth amendment. Which starts with the words “In all criminal prosecutions…”. Title IX proceedings are civil, not criminal, and arguably aren’t legal proceedings at all.

    Let the free market decide. Those schools that develop a reputation for railroading the man in cases of accused rape will see qualified male students apply elsewhere. Those schools that develop a reputation for sweeping rape accusations under the rug will see qualified female students apply elsewhere. Those schools that conduct thorough and fair investigations will, hopefully, see fewer rapists apply. Everyone can choose which one they want..

  16. Why the fuck are universities taking the place of the justice system to begin with? What the actual fuck?

    1. “Why the fuck are universities taking the place of the justice system to begin with?”

      They aren’t. They’re deciding whether or not the university wants to still be affiliated with the accused rapists. They’re not deciding whether or not he goes to jail (that’s what criminal court is for) or has to pay damages to the victim (that’s what civil court is for)

      If a delivery truck driver is accused of stealing from the people he is supposed to be delivering to, can the employer fire him on the spot, or do they have to keep employing him until a criminal conviction is obtained? Hint: It is the first one.
      OK. So… can a university expel (or apply other disciplinary measures, such as making someone move out of campus housing) a student accused of rape? Or do they have to wait until there is a criminal conviction for rape?

  17. Doe filed a cross-complaint, alleging that Roe had initiated additional sexual activity without his affirmative consent.

    Nice try, but she wasn’t initiating anything, you were raping her hand.

  18. We have a criminal justice system for investigating and prosecuting crime.

    1. … and universities have a disciplinary system for investigating and applying violations of the university’s disciplinary rules.
      Sometimes they overlap (sexual assault, other violence, vandalism) Sometimes violations of disciplinary rules aren’t also violations of criminal law (plagiarism, cheating on exams, buying papers) Sometimes violations of criminal law aren’t also violations of the university disciplinary rules (bigamy).

  19. “Title IX, the federal statute dealing with gender equality that requires universities to investigate sexual assault

    Citation needed.

  20. I worked in criminal justice for most of my adult life and I hated sex crimes more than the rest. It was because so many defendants denied the assault or claimed consent. And if there was a prior relationship between victim and alleged perpetrator then it got really muddy. Hell hath no fury and all of that. When men or women get their feelings hurt by a lover it unleashes feelings that can cause an otherwise law abiding man or woman to act like an idiot or even commit an act of violence or perjury . Sorting out who is telling the truth is sometime impossible. Yet people’s lives are changed and society demands not only a definitive answer but justice. Many times these are conflicting goals. Until we can read minds I would encourage everyone to practice patience around these cases.

  21. A big part of the problem here is that women have been taught to consider morning-after regrets as “OMG, I was RAPED!” instead of “Damn, I made a mistake. He looked a lot hotter when I was sh*tfaced.”

    And I have seen college women in bars and elsewhere pouring down drinks at a rate that left me wide-eyed, heedless of the fact that, because of various factors, most women can not drink as much as most men. My late mother was an alcoholic, but I could have drunk her under the table any night I cared to do so.

    I would also like to know when and why the rule came down that women are fully responsible for what they do drunk, except to have sex. If he has sex irresponsibly because he was drunk, he can’t plead “I was drunk, it isn’t my fault!” but she can, it seems. What next? If a woman drives drunk and causes an accident, do we let her off the hook?

Please to post comments

Comments are closed.