Response to 'Open Letter from members of the Penn Law School Faculty'

Submitted by Mastodon on Wed, 2015-02-25 07:33

Letter here. Excerpt:

'No, “due process of law is not window dressing,” and you have misstated the law of due process in the university setting. It is generally established that public universities owe students minimal due process rights, and private universities owe them none. While you critique the U.S. Department of Education Office of Civil Rights’ guidance that the evidentiary standard used should be a “preponderance of the evidence” standard instead of “clear and convincing” evidence, as a legal matter, private universities can discipline students with no process whatsoever. They must only adhere to the contract set forth by their own policies. Thus, the “Open Letter” must be seen for what it is: a disagreement with Title IX’s mandate that sexual assault survivors not be made to struggle through grievance procedures that specially insulate those accused of sexual assault. This policy, and the OCR’s guidance, was designed to fight the pernicious effects of sexism — including sexual harassment and assault — on our campus. Title IX, a civil rights law, mandates this policy for the purpose of ensuring that people are not denied the ability to pursue and enjoy their education on the basis of sex. The proceedings required are not criminal-light proceedings, despite your attempts to portray them as such. Although Penn’s data on discipline is sadly lacking, grievance proceedings are generally remarkable for the lack of consequences for those found to have committed a sexual assault. Few students found responsible for sexual assault in university adjudications are even expelled — between 13 percent and 30 percent by a recent count.

Furthermore, perhaps because you know full well that Penn students have no claim to due process in this setting, you failed to explore what your arguments mean in the context of actual due process at state universities. If you had, you would know that it is well established that due process allows state schools to expel students for any misconduct using an even lower evidentiary standard than that at issue here, that of “substantial evidence.” Why do you think it should be legally harder to expel someone for rape than for moving newspapers, or cheating or assaulting a police officer? The answer again is that your “fairness” standard has a basis — it’s just not in the law. And when 16 esteemed professors of law opine in a public forum, the general public will take your policy rhetoric as law, especially if it is cloaked in false appeals to the Constitution. Do you also think that people facing criminal rape charges should get special protections not afforded to other criminal defendants? Or is your concern only for Ivy League men accused of rape? One thing is certain: Your concern in this “Open Letter” is not for those of us who have been and will be sexually assaulted.'

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Comments

Guess this is one way to stand out. Granted, it's a fair bit less dramatic than hauling a mattress around all day.

I agree with her general point, made between sentences about the many rape victims and victims-to-be all over America's campuses, that the issue re the accused has nothing to do with US Con'l rights to due process being trampled. And I also agree that private colleges can indeed make their own disciplinary rules and enforce same; but they must do so within confines of the law.

SCOTUS long ago scuttled the idea that even private colleges were utterly independent of judicial oversight when in a court's opinion, said college in its policies was violating the civil rights of its students or potential students. This is why previously all-male colleges are no longer, and likewise with social clubs like the Rotarians. In addition, the current admin's "Dear Colleague" letter essentially stating that colleges must get with the admin's program or be left out of the federal student loan fold speaks volumes about what gov't can in fact do to influence college policies. Title IX is another example. Between those examples and previous ones that include laws regulating or meant to influence policies not only of public but private colleges, it's fair to say that while there is no Con'l guarantee of due process protection in a campus disciplinary hearing vis-a-vis the accused, there is the right to equal protection vis-a-vis the alleged victim, esp. if the alleged offense fits the stat. def'n of an actual crime. Legislation in process today seeks to cut that path off and channel the handling of reported sexual assault cases to campus-based hearings of some kind. Yet if the alleged victim was allegedly assaulted off-campus, then and only then she'd get police assistance and the resources of the state to help her bring her alleged assailant to justice? That doesn't add up.

As for the accused, the process represents a curbing of his de jure Title IX rights to equal access to educational opportunities. If he can be placed easily in danger of being expelled based on a complaint that isn't subject to questioning or investigation, then he is deprived of equal opportunity to education if such happens as compared to a student who when accused of a non-sex-related conduct code violation does have greater rights to challenge the accusation.

This whole thing's being argued from the wrong POV. If people'd stop obsessing over the Con'n and more just stick with laws already in place and unlikely to be challenged successfully, the argument against summary judgment of students accused of sex offenses'd hold a lot more water. As for the matter of alleged victims, there is a Con'l issue there, but one arising from equal protection.

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Submitted by Matt on Thu, 2015-02-26 01:45