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MONDAY, AUGUST 05, 2013

Litigation Issues

As a reader of The Shadow University shortly after it was published, I understood well the due process difficulties in campus judicial systems. But until the lacrosse case, I simply assumed that because sexual assault is a crime, such matters were handled by police, not by a campus judiciary. In any event, how campuses handled sexual assault complaints couldn’t be more troubling than the manner in which they handled other allegations.

That, obviously, isn’t the case. One of the most troubling counterfactuals of the lacrosse case is to wonder what might have occurred if Crystal Mangum had simultaneously filed a complaint through the Duke campus judicial process. If—and it’s not entirely clear—she had standing to have done so, there’s little doubt that a finding of guilty would have occurred.

Procedurally, the accused students would have lacked the right to attorneys, been unable to access the critical DNA evidence, and would have faced severe evidentiary and time restrictions in presenting their case.

Ideologically, the accused students would have been operating in an environment heavily influenced by the Group of 88 and their race/class/gender agenda.

For a less explosive example, consider the case of Caleb Warner, a former University of North Dakota student whose school found him guilty of sexual assault—even as the local police filed charges against his accuser for filing a false police report.

(As an aside, note that the police saying the accuser was lying wasn’t enough for the AP to identify the accuser, since “AP’s policy is not to identify alleged sexual assault victims,” even those the police have formally concluded made a false allegation.)

The basic unfairness of campus sexual assault procedures was intensified by the 2011 “Dear Colleague” letter, about which I’ve written extensively at Minding the Campus, which dramatically lowered the burden of proof in campus sexual assault cases.

In the last two months, however, two students convicted under their school’s wildly biased procedures filed suits in federal court. One lawsuit targeted Vassar College, which handles sexual assault claims through an “Interpersonal Violence Panel” whose procedures the college refuses to make publicly available. The second suit targeted St. Joseph’s University, after a process that appeared to ignore exculpatory text messages sent from the accuser to the student she accused. You can read my Vassar post here, and my St. Joe’s post here.

In the aftermath of the “Dear Colleague” letter, and with administrators responsive to their school’s version of the Group of 88, it’s all but inconceivable to imagine many, or any, residential colleges restoring due process on their own. In the end, only intervention by federal courts—as occurred a generation ago with speech codes—will bring a measure of due process to how campuses handle allegations of sexual assaults.

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Former NCCU chancellor Julius Chambers recently passed away. The most comprehensive obituary came in the Charlotte Observer, which recounted his myriad contributions to the causes of civil rights and due process over the course of his career.

Obituaries, obviously, tend to stress the positive in a career, and it’s hard to find any positive in Chambers’ conduct in the lacrosse case, where he teamed with William Bowen to pen a whitewash report that supposedly represented a critical analysis of how the administration responded to the case. Yet the report didn’t even address the issues that ultimately would cost Duke millions of dollars in legal fees and settlements, largely because Bowen and Chambers operated under an ill-concealed assumptions that the rape allegations were likely true. The Observer didn’t reference Chambers’ conduct in the lacrosse case, which contradicted his career-long support for civil rights and due process.

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The Supreme Court has requested a formal response from Durham to the longshot appeal in the McFadyen case. While this move means the appeal hasn’t been rejected out of hand, the question doesn’t seem to be the type that’s likely to generate interest from the Court.

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http://www.mindingthecampus.com/forum/2013/07/why_the_st_joes_lawsuit_matter.html

JULY 12, 2013

Why the St. Joe's Lawsuit Matters
Posted by KC Johnson


I previously wrote about the federal lawsuit filed against St. Joseph's University (and accuser Lindsay Horst) by former St. Joe's student Brian Harris. (You can read the complaint here.) Here are three reasons why the lawsuit could be significant.

Burden of Proof. Critics of the 2011 "Dear Colleague" letter have focused on the OCR's mandate that colleges reduce the burden of proof in sexual harassment and assault claims (and only in such claims) from the clear-and-convincing standard (around 75 percent) to the preponderance of evidence (50.01 percent). The Horst/Harris case is a good demonstration of the difference between the two standards.

At St. Joe's, the accuser (via text message) invited the accused to her dorm room, implied in writing they'd have sexual intercourse, and invited him in writing to spend the night. No medical evidence existed of a crime, since accuser Horst never sought medical attention. There were no witnesses to the students' intercourse, though Horst did speak to another dorm resident at some point in the evening. It's conceivable that despite the text messages and the lack of physical evidence, a disciplinary panel predisposed to believe accusers could conclude there was a 50.01 percent chance Horst was telling the truth. But it's hard to imagine that even a system as procedurally biased as the one at St. Joseph's could conclude there was a 75 percent chance she was telling the truth. Lowering the burden of proof increases the number of convictions--which seems to be exactly what at least some defenders of the new standard want.

Administrators. The recent parade of Title IX lawsuits--dutifully reported, stenographer-style, by Richard Pérez-Peña in the New York Times--have portrayed that student life and judicial affairs administrators at many leading colleges and universities as indifferent, or even hostile, to students who report they've been sexual assaulted. These claims have been accepted uncritically in virtually all press coverage of the filings. (A note: there's been no coverage of the St. Joe's lawsuit in the New York Times, even though Harris is from New York.)

It's certainly possible to imagine scenarios (a student claiming sexual assault against a star football player at Alabama or Nebraska, or perhaps a student claiming sexual assault against the son of a multi-million dollar donor) in which administrators might try to sidetrack a sexual assault claim. But the idea that student life administrators--armed with a reputation as paragons of political correctness--are routinely hostile to sexual assault accusers is all but absurd. Far more plausible is the behavior laid out by Harris in his complaint, in which St. Joe's student life investigator allegedly implied a connection between Harris' behavior and that of pedophile Jerry Sandusky, and, the complaint alleges, misreported what Harris told him about the night in question.

Gender Discrimination. In an article on Harris' filing, Bloomberg turned to Susan Stuart, a professor of education law at Valparaiso and author of the forthcoming law review article, "Warriors, Machismo & Jockstraps: Sexually Exploitative Athletic Hazing and Title IX in the Public School Locker Room." Stuart termed Harris' lawsuit "an odd sort of situation," since "what I typically see are cases in which it's not the offender who's suing under Title IX, it's the individual who's been the alleged victim." It's not clear how Stuart concluded that Harris is an "offender," since he was never charged with a crime, much less convicted of one. Stuart dismissed Harris' chances: "I don't see any factual allegations that males as a general rule are being picked on. The process seems to be gender bias-free."

It's true, I suppose, that a rigged disciplinary process isn't necessarily an example of gender bias, since women, too, can be accused of sexual assault. But, from the other side, men, too, can be victims of sexual assault. By Stuart's logic, then, OCR's decision to link Title IX (a gender bias statute) with demands to minimize due process protections for students accused of sexual assault would be out of bounds. Arguing that minimal due process protections discriminate against women, as OCR has done, must open up the sort of claim that Harris is making in his lawsuit.

The Horst/Harris case, in short, is a case to watch.

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http://www.mindingthecampus.com/originals/2013/08/the_dubious_rape_trial_at_vass.html

AUGUST 1, 2013

The Dubious Rape Trial at Vassar

By KC Johnson

Here's a probable growth area for litigation: suits against colleges for rigging sexual misconduct hearings against males, some of whom are being convicted of rape and other sexual offenses without any semblance of due process.

The federal government is implicated here: the Education Department's Office of Civil Rights has mandated a lower threshold of certainty in sexual harassment and assault cases, from the clear-and-convincing standard (around 75 percent certainty) to the preponderance of evidence standard (50.01 percent). So males can be branded as rapists for life if campus judges consider the accuser's version of events just slightly more likely than that of the accused.

As I noted previously, the Brian Harris case at St. Joseph's College represents an almost textbook example of how the forced adoption of a "preponderance of evidence" threshold makes factually dubious convictions more likely. A second case, filed by former Vassar student Peter Yu, raises some more complicated questions and is likely to get more attention. (You can read the complaint here.)

Complaint Filed a Year Later

Peter Yu and Mary Claire Walker were Vassar students and members of the college's rowing team. Yu and his parents are Chinese citizens, though he went to prep school in the United States. Walker's father is a long-time professor at Vassar--a pertinent fact in a case judged by three members of the Vassar faculty.

The two students consumed alcohol at a team party in February 2012; one of Walker's friends seems to have thought she was very drunk. After the party ended, Walker accompanied Yu back to his room. They started to have intercourse, but Yu's roommate entered the room and interrupted them; Walker then said she didn't want to go any further, and she left. The complaint quotes numerous, seemingly cordial Facebook exchanges between Walker and Yu over the next year, before Walker--on last day she could under Vassar procedures, a fact that is critical in retrospect--made a campus claim of sexual assault. She never filed a criminal complaint, nor did she, it seems, obtain a medical exam after her evening with Yu.

The rough outline of the next stages of the story will be familiar to anyone who follows campus judicial proceedings. Though Walker waited a year to file her charges, Vassar gave Yu almost no time to mount a defense: he was found guilty and expelled from the college two-and-a-half weeks after the complaint was filed.

Vassar--which explicitly affirms that its disciplinary panels do not use "formal rules of process, procedure, and/or technical rules of evidence, such as are applied in criminal or civil court"--denied Yu the right to an attorney and limited his ability to introduce exculpatory evidence at the hearing; the complaint also alleges that he did not receive an opportunity to cross-examine Walker fully. (This claim is impossible to verify, since the hearing was private.) Yu was found guilty, on the preponderance of evidence threshold, by a three-person faculty committee; his request that a student serve on the committee was denied.

Significance and a Star Chamber

Beyond the speed with which he was expelled, perhaps the most troubling aspect of the Yu case was the Star Chamber-like manner in which he was treated. Yu appears to have been tried before Vassar's "Interpersonal Violence Panel," which "hears allegations of violations of college regulations involving sexual misconduct." (Yu's attorney didn't respond to a question on this point, but among Vassar's disciplinary panels, the IVP allows an all-faculty jury, as occurred in this case.) Oddly, Vassar does not publicize the actual procedures the IVP uses, even in the Vassar student handbook--students are allowed only to obtain "specific information" from the dean of students. The college handbook doesn't explain why the college has elected to shield from public view the procedures it uses to handle sexual assault claims.

What other sections of the Vassar website do reveal raise eyebrows. Vassar has an extraordinarily broad definition of what constitutes sexual violence--which according to the college can range anywhere from rape to "treating the victim and other people as objects via . . . remarks" or "insisting on dressing or not dressing in a certain ways." In the event, IVP "panelists will have received specialized training with respect to these issues."

Neither Vassar's website nor the student handbook contains hints of what this "specialized training" entails. But the one university for which details about this sort of "specialized training" have been made public--at Stanford, thanks to legwork from FIRE--the results were chilling. (Stanford's was the training that suggested college adjudicators should interpret an accused student who presented his defense logically and persuasively as a sign of guilt.) More generally, the movement toward such "specialized training" to handle sexual assault claims (UNC had recently adopted the tactic as well) is another step toward denying an accused student access to a jury of his peers. Instead, the best he can get is a jury composed of students who have received "specialized training" that makes it more likely he'll be found guilty. The worst he can get is a pool like the one at Vassar, which consisted solely of faculty colleagues of the accuser's father.

Much like the Harris complaint at St. Joe's--which credibly claims that, in what was perhaps an abuse of the preponderance-of-evidence threshold, the university's hearings panel ignored or excessively downplayed highly exculpatory text messages between Harris and his accuser--the Yu complaint suggests that Vassar essentially dismissed numerous Facebook messages between Walker and Yu in which Walker discussed the evening, apologized to Yu, and at one point invited him to dinner at her home. The complaint notes that Walker testified that she sent messages out of fear of Yu.

The complaint doesn't specify the grounds upon which Yu was found guilty, although it appears as if issues of alcohol and consent played a role. In that respect, Walker's filing on the day the college statute of limitations expired is highly suspicious. If, according to Vassar, Walker was too inebriated to give consent, presumably Yu could have made an identical claim against Walker, since both parties had consumed alcohol that evening. But by filing on the deadline, Walker ensured that Yu wouldn't have any opportunity to file a counter-claim of sexual assault based on inability to give consent. Another note: since Walker never received a medical exam after the alleged incident, there appears to be no evidence of her (or Yu's) state of inebriation on the night in question.

Finally, the complaint observes that Yu has experienced tangible harm from Vassar's dismissal of due process. After being expelled from the college, he has been rejected (or simply told not to apply) by nearly a dozen other schools. That shouldn't come as a surprise: what college would want to admit someone whose previous school branded him a rapist? Yu's fate thus provides a reminder of how a college not providing due process can have a lasting impact on the subject of the college's action.

The OCR and Vassar

It's worth reiterating that the OCR itself, through the "Dear Colleague" letter of 2011, has helped to put on the table the issue of the relationship between Title IX and gender discrimination in sexual assault procedures. According to the "Dear Colleague" letter, colleges providing what could be deemed too much due process--adjudicating an accused student according to a "clear and convincing evidence" standard, or mimicking the criminal justice system by allowing the accused, but not the accuser, to appeal, or even (the letter strongly implied) allowing the accused student to cross-examine his accuser--violated Title IX's prohibition against gender discrimination. That was the case even though not all accusers in sexual assault cases are female.

If, in the OCR's interpretation of the law, too much due process constitutes gender discrimination against women, surely at some point too little due process constitutes gender discrimination against men. That is: unless the OCR sides with the likes of Wendy Murphy and believes that the mere filing of a sexual assault claim, even absent a criminal or medical investigation, transforms an accuser into a "survivor."

Neither the OCR nor anyone else in the Obama administration has ever spelled out how far is too far for colleges to go to deny due process to accused students. In light of the Harris and Yu cases, perhaps now would be an appropriate time for the agency to explore that question.