Right On: Kangaroo courts on campus

Composite includes student photo by seb_ra, scales by artisteer, both iStock / Getty Images Plus, St. George News

OPINION — College sexual assaults are all too frequent and sadly, often devolve into a “he said, she said” conundrum.

Addressing the issue, Obama’s Education Department issued a “Dear Colleague letter” to college administrators describing how to handle sexual assault complaints. The department meant well but blatantly disregarded legal due process for those accused of sexual assault.

Implicit was the threat of losing federal funding. Getting a “guidance” letter from the folks who provide almost $140 billion per year in postsecondary education funding is like getting guidance from Darth Vader.

Colleges complied, setting up the requested kangaroo courts.

The letter’s “guidance” sounds eerily like a show trial in one of Stalin’s “people’s courts” where verdicts were never in doubt:

  • Assign a single college administrator to investigate each case as a de facto prosecutor, judge and jury.
  • Dispense with bothersome legal formalities like a clear statement of allegations, the right to legal representation, adequate time to prepare a defense, access to relevant evidence, the right to cross-examine the accuser and a meaningful appeal process.
  • Render judgment using the low “preponderance of evidence” normally applied to civil cases rather than the “beyond all reasonable doubt” standard required in criminal cases.
  • Complete the process within 60 days of the complaint.

I put quotation marks around the word “guidance” since the Obama administration ignored the federal Administrative Procedures Act’s rule-making requirements. But the letter was in fact a rule masquerading as “guidance.”

The letter was formulated without the public hearings, comment periods and other mechanisms required by the act. These steps were put in place to avoid unintended consequences like those arising in this situation.

Let me be clear: Most sexual assaults on and around college campuses are committed by young men who deserve to be punished. Colleges need appropriate processes to deal with assaults, to discipline perpetrators and to protect students.

In 2014, the federal Bureau of Justice Statistics found that 6.1 college women per 1,000 had been sexually assaulted and that in 80 percent of the cases, the attacker was known to the victim.

Use of physical force or violence is criminal assault and should be dealt with by police and the courts. But many of these assaults occurred when the woman was incapacitated, most often due to alcohol or drugs.

Back in possession of her senses, a previously-incapacitated young woman is traumatized and often embarrassed, ashamed and reluctant to file a complaint.

Incapacitated BYU student victims were especially reluctant to come forward. The school’s honor code prohibits premarital sex and the use of alcohol. Reporting an assault opened the victim to an honor-code investigation that could result in expulsion.

Under pressure, BYU subsequently stopped honor-code reviews of sexual assault victims. BYU’s policy change had the salutary effect of encouraging more young women to step forward and report assaults.

Unfortunately, the federal study found that 80 percent of all college assaults were not reported to the police. Overcoming this reluctance is both important and difficult.

Important because colleges can’t deal with problems they don’t know exist and they have a responsibility to warn and educate students to prevent future occurrences.

Difficult because administering justice in a “he said, she said” situation is a challenge. Usually there are no witnesses and complaints are often filed days or even years later.

“He said, she said” cases are common in civil disputes such as divorce proceedings. Such cases are decided on the basis of preponderance of evidence. Even then however, as attorney Jennifer Ellis explains, “The word of one person, in and of itself, is rarely enough to win a civil case.”

Yet following the “guidance” letter, one young woman’s word, in and of itself, can permanently change the life of a young man.

Attorney Robert Smith, leader of Boston law firm LeClair Ryan’s Colleges and Universities Team said:

Any competent detective will tell you that these cases often reduce to ‘he said, she said’ arguments and involve complex questions relating to anonymity, racial bias, intoxication, subjective interpretation of sexual intent and behavior, and more.

Forcing educators to be criminal investigators charged with sorting out such psychosexual dynamics is a tall order, especially in light of (the) 60-day deadline for resolution of these cases.

The result, unsurprisingly, has been a travesty of injustice, incompetence and inconsistency as schools struggled to comply. Many institutions, often small colleges with limited resources, are now engulfed in lawsuits flowing, again unsurprisingly, from these kangaroo courts.

Four feminist Harvard law professors argue for fairness for all students: “The Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”

Dozens of liberal law professors from across the country have expressed serious concerns about the Obama administration’s unlawful and blunderbuss approach to a complex problem.

In response to these concerns, Education Secretary Betsy DeVos recently announced that her department is withdrawing the “well-intentioned but flawed” guidance letter. DeVos said that “one rape is one too many” but that “one person denied due process is one too many.” DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”

Due process should not be a liberal or a conservative issue. Almost all the law professors expressing concern were liberals. Nonetheless, Democratic politicians and progressive activists expressed kneejerk, partisan opposition.

Replacing the guidance letter with an effective and lawful federal rule will require a variety of inputs, consensus building and goodwill. As DeVos said, “The era of rule by letter is over.”

I’m with Harvard’s liberal feminist law professors on this one.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: hsierer@stgeorgeutah.com

Twitter: @STGnews

Copyright St. George News, SaintGeorgeUtah.com LLC, 2017, all rights reserved.

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9 Comments

  • statusquo September 28, 2017 at 9:43 am

    Sexual assault on college campuses are the natural result of our public education system failure to teach abstinence but instead providing and teaching the proper use of condoms. Why should we be surprised when “hook-ups” happen? The solution should be preventative rather than trying to sort out the “he said, she said” after the fact.

    • bikeandfish September 28, 2017 at 11:23 am

      Untrue. Indiana requires emphasis on abstinence if sexual education is taught in public schools but its population still sees significant levels of sexual assault in public schools and colleges. Study after study actually shows that “abstinence-only” programs not only don’t curtail pre-marital sex but actually states that enforce that education experience higher levels of unwanted pregnancy. To make matters worse they don’t teach students what consent means which has a huge influence on rape reporting.

      Sexual assault is the result of predatory behaviors. Rape isn’t a “hookup”. Rape prevention is part and parcel of modern sexual education.

      Your statements reflect a gross ignorance of well-established fact regarding sexual assault and expose how important it is for universities to have programs in place to protect their students.

  • bikeandfish September 28, 2017 at 10:39 am

    Why does Mr Sierer constantly resort to inflammatory comparisons like Stalin and McCarthy in his opinion pieces? They don’t match in scale or content. Its lazy logic and fear mongering.

    The hyperlink about “kneejerk” opposition actually seems to be a thoughtful, reasoned argument based upon public statements by relevant players in the change. Is it kneejerk to name concerns about upholding the integrity of Title IX protections when the acting assistant secretary makes egregious claims that most cases are just “we were both drunk” regret?

    The four feminist “quote” is a summary on the document’s abstract and not an actual quote from those authors. They do make statements about the problems in the Obama Title IX guidelines but do so while showing successes at other universities like Oberlin. They focus on fairness in process but seem to condone using the Title IX guidelines with revision or further reform. I would wager from Mr Sierer’s previous citations and his superficial “quote” here that he didn’t actually read the author’s full statement but instead went on a Google fishing expedition for “feminist” criticisms of Title IX guidelines. It appears he regularly engages in confirmation bias while missing the nuance and content of his own sources that rarely support he grandiose claims.

    There is need for reform but there was little need for DeVos to throw the baby out with the bath water in the way she did. Repealing without replacement will likely cause more harm than good. Overly focusing on the accused ignores the fact that less than 10% of accusations are falsified. Creating just process and outcomes is an ongoing process of refinement and even our legal system shows how slow and incremental that can be. But there is plenty of reason to critique DeVos’s action without remotely being kneejerk as Howard’s own citation ironically highlights.

  • NickDanger September 28, 2017 at 10:47 am

    “Replacing the guidance letter with an effective and lawful federal rule will require a variety of inputs, consensus building and goodwill.”

    Well here’s a thought – Isn’t rape already against the law?

    The wacky idea that “campus rape” is somehow different from regular old-fashioned rape just feeds into the idea that college students are special people.

    College students are morons. There’s a reason they call them “students.” They are learning how to be something more, someday they will be something more, but for now, they’re morons.

    Why the media gives college students a non-stop 24/7 platform to spout their ridiculous, idealistic nonsense is beyond me. I suppose it must be because liberals control the media, and naive, inexperienced college students tend to be liberal, so why not make them out to be more important than they are? Liberals have been relying on the uneducated and the not-yet-educated to hawk their agenda for decades now.

    Rape laws on a college campus should be the same as rape laws anywhere else. I don’t want one more penny of my tax dollars going to fund some study about campus rape, and I don’t want my lawmakers – certainly not the Secretary of Education – wasting their time on this crap.

    Campus rape is not an issue. RAPE is not an issue. There is no “rape culture.” There are rapists. Lock ’em up. There are women who claim to be raped but actually gave consent then changed their mind later. Lock them up too. Done and done.

    • bikeandfish September 28, 2017 at 1:02 pm

      Your media and legal illiteracy shines again, Nickdanger. Rape laws on campus are the same as rape laws elsewhere. Campus rape, ie rape on campus, does have context and nuance that is different then elsewhere given its unique environment. Title IX isn’t a law that changes how a rapist is tried in court but directs universities to deal with rape as a campus issue because of how it creates a hostile environment for students. But the accused are tried in a court of law there nor are they consequenced in the same fashion. Its akin to human resources firing an employee for sexual harrassment, which still allows an employee to deal with legal repurcusions.

      The Secretary of Education is legally required to deal with sexual assault and rape and even DeVos knows that and is acting accordingly.

      Your ignorance and hate constantly comes through. Its a good thing it doesn’t matter what you want given the laws that are inconsistent with your statements.

      • bikeandfish September 28, 2017 at 1:03 pm

        *are not tried in a court of law on campus

      • NickDanger September 28, 2017 at 3:00 pm

        I really don’t need your opinion, Bike. All I have to do to get it is read Huffington Post or just google “special snowflake.”

        I am interested in discussing your reading comprehension though. Title IX of the Education Amendments Act of 1972 is law. But it has nothing to do with rape. It’s intended to protect against gender discrimination. Only an extremist could possibly interpret it as relating to rape.

        I’m saying we don’t need special laws on campus. If a student at a college is convicted of rape, IN A COURT OF LAW, does it really matter whether the university takes action against him or not? He’s not going to be attending classes from his prison cell. And if he’s out on bail awaiting trial on a rape charge, I’m pretty sure that would become common knowledge on any college campus. Far as I’m concerned, that would be plenty reason enough to suspend the kid until the case is resolved BY THE REAL LEGAL SYSTEM.

        I went to college in the 1980’s. The exact same Title IX of which you speak was in place then, but guess what? Most kids didn’t even know it existed. It certainly wasn’t part of anyone’s life. And it certainly wasn’t interpreted, by special interest groups, as relating to rape.

        We didn’t have a platform back then, Bike, and rightfully so. We knew we were idiots, we knew no one wanted to hear our opinions, we knew we had a long way to go in life before our opinions were valid.

        But now you’ve got the liberal media on a mission, and they’re putting these lamebrained college kids out front because it suits their agenda. Remember Mattress Girl? That behavior was dangerously close to actual retardation, and this came to us from the Ivy League itself, plastered all over the news courtesy of the liberal media. I mean, it’s a joke, but not the funny kind.

        And what is “rape culture,” the fierce battle cry of these screaming ninnies. A culture in which rapes occasionally occur? In that case, every single culture in the history of the planet is a rape culture. It happens. It’s wrong. That’s why it’s illegal and we send people to prison for it. If anything, the USA has a much smaller occurrence of rape than most countries, because we have First World law enforcement protecting us.

        No one wants to see our young ladies getting raped. As far as women being afraid to come forward and report a rape, I don’t see that happening anywhere. What I see far more often is women being very happy to report rapes that DIDN’T happen as some kind of revenge.

        And that’s why we need only real police work in these cases; not, as the writer here so correctly calls it, some on-campus kangaroo court making decisions that will affect people for the rest of their lives.

        Have a nice day, Bike. Enjoy being wrong again.

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