The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Campus due process comments and responses
The quality of the commenters is one of the most enjoyable aspects of posting here. So, a few responses (R) to comments (C) below:
C: "Another facet of campus sexual assault that is rarely discussed is the strong evidence that young women are far more likely to be sexually assaulted if they are not students than if they are (look at the National Crime Victimization Survey). Even if campus tribunals were fair and accurate, any 'solution' that focuses on college campuses alone will neglect the vast majority of sexual assault victims; in fact, by removing rapists from colleges and placing them among non-student populations, this system endangers those who already suffer more. This argument should resonate among those who focus on equity, since policies targeting campus sexual assault benefit disproportionately wealthy and white populations at the expense of poor and non-white populations. This is another reason to use police and the courts for investigation, adjudication, and punishment, and to use universities for prevention, education, and counselling. Policies improving the way the justice system handles sexual assault will benefit society as a whole, not just students."
R: This is a very important point, in multiple respects. First, as the survey mentioned above notes, and despite the suggestion of activists on this issue such as Sen. Kirsten Gillibrand (D-N.Y.), non-college women are at greater risk of sexual assault than are college women. The fate of these women seemed of little interest to both the Obama administration and the key congressional players on this issue.
The equity issue works in another way. Though the actual percentage is unclear, most female undergraduates (a portion of whom are part-time students) don't live on campus. Of that constituency, those who are sexual assault victims, therefore, are far more likely than a student at a four-year, residential college to have as a perpetrator a non-student, with an attack outside of campus jurisdiction. These students are part of the "1 in 5″ figure the Obama administration used, yet their fates seemed of little interest to the campus movement.
Finally, from an equity standpoint, the campus rape frenzy is, in its most basic form, a movement of the elite, for the elite. As Stuart and I discuss in the book, Clery Act figures show that allegations of campus sexual assault are far higher (by a factor of six, in some cases) at Ivy League universities or elite liberal arts colleges than at nearby institutions. By focusing almost exclusively on allegations of sexual assault handled through campus tribunals, the Obama administration and its allies wound up, whether intending to do so or not, focusing disproportionately on the nation's elite institutions.
C: " 'The Campus Rape Frenzy' as a title implies that the claims are rape are bogus. That is an unwarranted inference . . . [T]o then imply that the people who claimed rape are liars because the accused were not found guilty is pretty vile."
R: The book makes no such claim. In fact, Stuart and I go to great lengths not to speculate about the motivations or mind-set of most accusers. The only accuser in the book whom we describe as lying is "Jackie," from the Rolling Stone case, who claimed to have been raped by a person who, it turns out, doesn't exist. We do use the word in a quote from the Amherst accuser, who searched for a cover story about having sex with her roommate's boyfriend. She texted that the male student she'd eventually accuse of sexual assault was "too drunk to make a good lie out of shit." We also use the word in quoting from a decision in the Ohio State case, where Judge James Graham ruled that an accused student's lawsuit could go forward, since it was possible that OSU "Administrators knew that [the accuser] lied about the timing of her accommodation at the hearing and permitted her testimony to stand unrebutted."
C: "You understand legal-ese, right? That's where the conversation, below, is focused on. Stating that something is a requirement, etc., obfuscates the issues. It is entirely correct to say that the letter is coercive—that's a great argument. Saying that the letter makes any requirements (APA, etc.) is incorrect . . . That is why precision matters in these issues. Well, it used to on this blog. Now we just let journalists in to hawk their latest red meat book"
R: This comment would be better directed at former OCR head Catherine Lhamon, who informed the Senate HELP Committee in 2014 that she expected colleges and universities to comply with OCR's Title IX guidance, even though OCR had elected not to issue it as a regulation in compliance with APA. (Sen. Lamar Alexander, holding up the "Dear Colleague" letter: "You require [emphasis added] 6,000 institutions to comply with this, correct?" OCR head Lhamon: "We do.")
To the extent you're arguing that OCR improperly issued a de facto regulation as guidance, I agree, and hope that the lawsuits challenging OCR on these grounds (Doe v. Lhamon, Neal v. CSU-Pueblo, et al.) succeed. For now, however, the few universities that in any way challenged the OCR approach quickly received Title IX complaints, followed by investigations and resolution agreements.
C: "The author's implication that the universities have no role in internal disciplinary proceedings involving 'behavior that's a felony in all 50 states' is poorly considered. The police are handicapped in these matters because campus police handle everything on campus: moreover, the nature of a college campus is that it creates a lot of situations where young men and women are in situations where the behavior pretty clearly crossed into that felony category, but the standard of proof for a felony conviction, with its ramifications that far exceed anything the universities can impose, are impossible to meet."
A: According to Education Department figures, there are more than 11 million female undergraduates. Data about where they live is not precise, but, as noted above, it seems that the vast majority of them do not live on a campus. So the claim that "the police are handicapped in these matters because campus police handle everything on campus" is false. Moreover, nearly all of the cases that we write about in the book are not handled by campus police (who are, in any case, often regular law enforcement officials). Instead, the investigations are conducted solely through the university's Title IX office, with no involvement from law enforcement at all.
C: "Traditional law enforcement is totally better at assessing whether a felony has occurred. And campus tribunals are better at assessing whether a student's conduct transgresses the rules governing the behavior of students admitted to that institution."
A: This statement evades the central issue in these cases. Of course, campus tribunals are better suited than the courts to determine whether plagiarism or cheating on an exam has occurred. But on this issue, whether the conduct in question is framed as a potential felony, tort or disciplinary code transgression, the fundamental issue remains the same: Did the accused student sexually assault the accuser? Whatever their faults, courts (whether criminal or civil) are far better suited to gathering and testing the evidence to reach an answer to that question than are campus tribunals, which (as even their defenders have started to concede) are incapable of gathering enough evidence to confidently determine the truth.
Finally, several comments criticized one or more of the posts for their "partisan" criticisms of Barack Obama or Joe Biden. To me, claiming a "partisan" attack implies more than a simple criticism of a policymaker—it suggests a political motivation, or a willingness to hold officeholders of one party or ideological belief to a standard different from the standard to which the author holds politicians with which he or she sympathizes.
In my case: I'm a Democrat. I donated to Barack Obama's 2008 primary campaign, 2008 general election campaign and 2012 general election campaign. I voted for Obama in both 2008 and 2012. Whatever else has motivated me in my criticism of his administration's policies on campus due process, it's not partisanship.