Why Speech Codes Endure

November 27, 2013

by James Taranto

Joshua Strange will never forget the girl he met in May 2011.

Both were underclassmen at Alabama’s Auburn University when a common acquaintance introduced them. “We instantly became attached at the hip and did everything together,” she recalled six months later. “I rather quickly moved into his place. . . . Everything was great until pretty much June 29.”

That night, an intimate encounter in Mr. Strange’s bed went wrong. She called police, who detained him for questioning. She said she had awakened to find him forcing himself on her; he said the sexual activity was consensual and initiated by her. There was no dispute as to the physical acts involved.

The accuser did not press charges that night. In fact, before sunrise she returned to his apartment, and the couple agreed to continue dating. When I asked him why in a recent phone interview, he told me: “I cared about her.”

Mr. Strange was cleared on both counts. On Feb. 3, 2012, a grand jury handed up a “no bill” indictment on the sodomy charge, meaning the evidence was insufficient to establish probable cause for prosecution. On May 24, when the simple-assault case went to trial, the accuser didn’t show up. “I don’t have a witness to go forward with, your honor,” said city attorney Michael Short. Case dismissed.But the relationship soon disintegrated. Phone records show their communications ended in mid-August. In early September he was arrested again after she told police that two days earlier he had confronted her in a public place and struck her. He flatly denied it, saying he was 15 miles away at the time. This time she did press charges, for misdemeanor simple assault as well as for felony forcible sodomy in the June 29 incident.

So Mr. Strange got his day in court and was treated fairly. But he had already been punished for the unproven crimes. Auburn expelled him after a campus tribunal found him “responsible” for committing the catchall offense of “sexual assault and/or sexual harassment.” A letter from Melvin Owens, head of the campus police, explained that expulsion is a life sentence. If Mr. Strange ever sets foot on Auburn property, he will be “arrested for Criminal Trespass Third,” Mr. Owens warned.

Joshua Strange, now 23, is a civilian casualty in the Obama administration’s war on men. In an April 2011 directive, Russlyn Ali, then assistant education secretary for civil rights, threatened to withhold federal money from any educational institution that failed to take a hard enough line against sexual misconduct to ensure “that all students feel safe in their school.” The result was to leave accused students more vulnerable to false charges and unfair procedures. The prospect of losing federal funds has left university administrators “crippled by panic,” Robert Shibley of the Foundation for Individual Rights in Education told me. “The incentives are pointing toward findings of guilt, not accurate findings.”

The injustice of such proceedings is largely hidden from the public, because most universities conduct them secretively. Auburn is no exception. Its Discipline Committee’s hearings are closed to spectators, “private and confidential” under university bylaws. But Auburn keeps on file an official audio recording, a copy of which I obtained.

Ms. Ali’s directive had an effect even before Mr. Strange’s hearing began. At the time, Auburn’s bylaws stipulated that accusers in campus disciplinary cases had to show “clear and convincing evidence” to establish guilt. Less than three weeks before the Nov. 8, 2011, hearing, Brandon Frye, then director of the Office of Student Conduct, informed Mr. Strange that the rules had changed. As per Ms. Ali, the standard was reduced to “preponderance of the evidence.”

Mr. Strange still should not have been convicted. The grand jury found there wasn’t even probable cause, a looser standard than preponderance of the evidence. But the university hearing that yielded his expulsion was a travesty of a legal process.

The most striking quality of the 99-minute proceeding is its abject lack of professionalism. Imagine a courtroom with a jury and witnesses, but no judge or lawyers. Mr. Strange and his accuser had lawyers present-the only people in the room with legal training-but they were forbidden to speak except to identify themselves at the outset.

Presiding was an Auburn librarian, Tim Dodge, the committee’s chairman. The other members were two students, a staffer from the College of Liberal Arts and a fisheries professor from the Agriculture College. Mr. Dodge was confused and hesitant throughout. At one point he got lost and admitted: “I can’t find the script here.” On multiple occasions an unidentified voice-Mr. Strange believes it is Mr. Frye-can be heard on the recording whispering stage directions to Mr. Dodge.

 

The absence of a judge to control the proceedings left Mr. Dodge anxious for authoritative guidance. It was provided by the two Auburn administrators the accuser called as witnesses. First up was Susan McCallister, an associate director with the campus police who doubles as a “safe-harbor advocate,” a concierge for purported sex-crime victims. “Any kind of services that they need access to, we provide a doorway,” she explained. Such services include counseling, “academic accommodations” and help in filing police reports.

At the hearing, Ms. McCallister proclaimed the accuser “very credible” and attested to the belief that Mr. Strange was “a potential threat to [the accuser's] safety.” But Ms. McCallister disavowed knowledge even of the accuser’s version of events. “As a safe-harbor advocate, I really don’t need to know a lot of details, and so I didn’t ask her to go into great detail,” Ms. McCallister said. “I don’t really want survivors to have to tell their story over and over again.”

Ms. McCallister had referred the accuser to Kelley Taylor, the university’s sex-discrimination enforcer and the accuser’s second witness. Ms. Taylor also described the accuser as “credible” and added that she found the allegation “very compelling.”

Mr. Dodge asked Ms. Taylor to describe “typical behaviors” of “somebody who may have undergone a sexual assault.” She listed three. First, “they frequently cry.” Second, “their storytelling is sometimes disjointed, sometimes not.” Third, “there’s often a lot of emotion inserted into the story that is about being very upset or in disbelief or unsure what to do next, petrified.”

The second “behavior” is tautological; every story either is or is not disjointed. The third is a windy elaboration of the first. Thus Ms. Taylor’s testimony amounted to a claim that in principle a woman’s tears are sufficient to establish a man’s guilt-an inane stereotype that infantilizes women in the interest of vilifying men.

Mr. Dodge was unsatisfied, but not with Ms. Taylor’s poor reasoning. Rather, he wanted reassurance that her opinions were authoritative. The ensuing exchange lends new meaning to the expression “throw the book at him.”

Mr. Dodge: “Are typical alleged victims’ reactions present in the available literature?”

Ms. Taylor: “Yes. Yes. In fact, there’s, um-I mean, I don’t have it here to distribute, but-”

Mr. Dodge: “Right.”

Ms. Taylor: “-um, there’s a whole, um, host of information on victimology, um-particularly sociology. People with specialties in sociology, psychology, have written tomes about how to assess credibility, the victimology behind this kind of thing, why victims don’t always report right away-the whole gamut. I haven’t read them all, of course, but I’ve read some of them, and I’ve been exposed to a number of them in my training.”

Mr. Dodge: “So in other words, there is professional literature out there.”

Ms. Taylor: “Absolutely.”

Mr. Dodge: “OK.”

Mr. Dodge declined to be interviewed for this story, citing his duty of confidentiality. Ms. McCallister and Ms. Taylor did not respond to interview requests.

The Ali directive stipulates: “Public and state-supported schools must provide due process to the alleged perpetrator.” I asked Auburn spokesman Mike Clardy if the university is confident that its procedures meet that standard. He answered with a written statement from Jon Waggoner, interim vice president for student affairs: “While Auburn University does not comment specifically about specific student conduct cases, we feel confident that each and every student who participates in the process is afforded notice and opportunity to be heard on all matters pertaining to the specific case under review.”

Mr. Waggoner was alluding to Goss v. Lopez, the 1975 U.S. Supreme Court case that established a due-process standard-notice and a hearing-for high-school students facing suspension of up to 10 days. Whether such minimal protections are sufficient for adults in college is an unresolved legal question, and Justice Byron White wrote for the court that even in the high-school context a longer suspension or expulsion “may require more formal procedures.”

The Strange case vividly demonstrates the insufficiency of the Goss standard, at least as applied by Auburn. The committee’s procedures were as shoddy as the “evidence” it accepted.

The university flaunted its contempt for the defendant’s right to confront his accuser. According to Mr. Strange, a curtain was hung in the hearing room to shield her from his view. And although the panelists were permitted to question witnesses, there was no cross-examination.

Adversarial questioning is a crucial check on false or misleading testimony. Example: During the hearing, the accuser claimed three times that immediately after the disputed sexual encounter, Mr. Strange locked her in his bedroom. That sounds menacing, but Mr. Strange’s version, which was not told at the proceeding, is that he wasn’t locking her in but locking himself out. He told me that she had “started freaking out” and refused to say what was wrong. “I told her, ‘I’m going to get my keys. I’m going to go out of the room and close the door and lock it behind me. I’m going to take the key that operates my bedroom door, and I’m going to put it underneath the door, so that way you have complete control.’ ”

Six weeks before the university hearing, the accuser had testified in a proper courtroom, when she petitioned successfully for a restraining order. Under questioning from Mr. Strange’s lawyer, Davis Whittelsey, she acknowledged under oath that Mr. Strange’s account was truthful: “I’m not saying I was locked up in there and had no way out or anything. I’m just saying the bedroom was locked.”

With criminal charges pending, Mr. Strange chose not to testify at the university proceeding. Auburn bylaws stipulate that “failure of the student [charged with an offense] to make a statement or to answer any or all questions shall not be considered in the determinate on [sic] of guilt or innocence.” Yet Mr. Dodge and the other panelists raised no objection when the accuser, in her closing statement, emphasized that Mr. Strange “never talked about the facts of this case.”

Although that statement seems improper, it was consistent with the logic of the proceeding. The preponderance-of-evidence standard enfeebles the right to remain silent. In a she-said-he-said case, the adversaries start on equal footing, so that some shred of additional evidence is necessary to convict. But when it’s she-said-he-kept-silent, she begins with an overwhelming evidentiary advantage. In a federal civil lawsuit, which uses the same standard, jurors are permitted to draw adverse inferences from a defendant’s refusal to testify.

Further, the right against self-incrimination is indivisible from the right to counsel. Even in a civil case, a courtroom defendant who declines to testify has the benefit of an attorney to make arguments on his behalf. By gagging Mr. Strange’s lawyer, Auburn made it impossible for the defendant to remain silent without forfeiting the ability to mount an effective defense.

To be sure, the accuser’s lawyer wasn’t allowed to speak either. But he prejudiced the “private and confidential” proceeding merely by stating his name: Michael Short, the city attorney, who was prosecuting Mr. Strange on the simple-assault charge.

This story is almost as typical of American universities as it is outrageous. I described the hearing in detail to Mr. Shibley of the Foundation for Individual Rights in Education. He told me the only element that struck him as unusual was the prosecutor’s presence in the hearing room.

Yet apart from the loose standard of proof, none of Auburn’s procedural infirmities are expressly mandated by the Education Department. If the due-process requirement is more than an empty promise, the department will withhold Auburn’s federal funding until the university revamps its procedures and makes restitution to Mr. Strange.

It would be better still if universities could get out of the discipline business altogether, except for scholarly offenses like plagiarism, cheating and falsification of data. Ordinary civil and criminal courts are immensely more competent to adjudicate allegations of sexual harassment and violent crime, in open proceedings subject to appellate review, without trampling the rights of the accused.

Mr. Strange’s banishment from Auburn didn’t become official until the Discipline Committee’s verdict had been rubber-stamped by Ainsley Carry, then vice president for student affairs, and Jay Gogue, the university president. That was Feb. 2, 2012, the day before the grand jury cleared Mr. Strange of the charge for which he was expelled. He had to stay in Auburn-but away from campus-for 3½ months, until the misdemeanor charge evaporated amid the accuser’s truancy. He now lives with his parents in Spartanburg, S.C., and is a senior at the University of South Carolina Upstate. He graduates next May.

The day after I interviewed him, I received a grateful email from his mother, Allison. “Thank you for allowing Josh to tell his story last night,” she wrote. “I could tell that it made him feel better to finally be able to get it out in his own words to someone other than his family and attorney.”

I’m a newspaperman, not a therapist. But there are no safe-harbor advocates for survivors of wrongful accusation.

View this article at The Wall Street Journal.

Schools: Auburn University