Yesterday, I discussed the ramifications of the Department of Education’s Office for Civil Rights’ (OCR’s) April 4, 2011, "Dear Colleague" letter for students at the University of North Carolina, which decided earlier this month to inaugurate a new "two-tier" disciplinary system to comply with OCR’s procedural mandates. Under the newly revised system, UNC students accused of misconduct like cheating, plagiarism, or drug and alcohol abuse will face a hearing using the "beyond a reasonable doubt" evidentiary standard employed in our criminal justice system, which has also traditionally been applied by UNC’s century-old Student Honor Court. In contrast, students facing serious sexual harassment or sexual assault charges will be subject to use of our nation’s lowest burden of proof, the "preponderance of the evidence" standard, per OCR’s new requirements. Brooklyn College Professor KC Johnson criticized the resulting "two-tier system of justice" over at Minding the Campus.
I ended my post yesterday by noting that it will be worth watching how many universities end up with similarly disparate procedures. Unfortunately, we can already add one more to the list, as The Cornell Daily Sun reports that Cornell University President David Skorton has approved a similar overhaul of his university’s sexual assault policies:
President David Skorton’s signature has sealed a year-long debate over how to resolve allegations of sexual assault against students in compliance with Title IX, the federal law that prohibits discrimination based on sex in educational institutions.
Skorton approved the University Assembly’s Resolution 7 Wednesday, affirming the decision to treat accusations of sexual assault or harassment cases against students in the same way as those made against faculty, staff and student employees.
Under the new system, laywers will not be allowed to advocate for the accuser or the accused, and the standard of proof will be lower than it is for other offenses.
Skorton’s approval is disappointing, and effectively ignores the significant concerns expressed by Cornell students and faculty and by FIRE over the past year.
Writing again at Minding the Campus, KC Johnson blasts Cornell for being the latest university to accept "two-tier judicial systems that make a mockery of the American constitutional heritage":
The rationales for the new policy from Cornell administrators ranged from comical to frightening. Cornell president David Skorton celebrated the undermining of due process on his campus by pronouncing himself "gratified by the measured and deliberate consideration given to this consequential issue." Judicial Administrator Mary Beth Grant, as paraphrased by the Sun, went much further: "Lowering the burden of proof for sexual assault cases will encourage more victims of sexual violence to file complaints, Grant said. Grant acknowledged the concern expressed by opponents of the change that an increase in allegations of sexual assault will result in more students being falsely accused or found in violation. Still, she said she is optimistic[!!!] about the effects the change will have on assault investigations."
In one respect, the new Cornell policy reflects the spirit of the OCR’s hostility to due process while going beyond the actual terms spelled out in the "Dear Colleague" letter. Under the new policy, students accused of sexual assault will not have the right to have an attorney cross-examine their accuser–a right that students accused of other offenses will retain. Even the "Dear Colleague" letter does not demand that universities strip students of the right to effective legal counsel.
Alan Mittman, director of the Cornell bureaucratic agency that will now be charged with investigating student claims of sexual assault, dismissed the significance of the change, which should horrify anyone with a pretense of respect for due process. Mittman wildly asserted that because representatives of his agency would ask the accuser questions about her claims, there wasn’t any need for additional cross-examination. "’I find no evidence,’" he told the Sun, "that an attorney in an adversarial system is more effective at discovering the truth than an independent investigator is."
Even more stunning than Mittman’s comment was the legal analysis from Cornell’s university counsel, James Mingle. He denied that the OCR policy was "very unreasonable," and claimed that lowering the burden of proof to achieve conviction and removing the right to have an attorney cross-examine the accuser showed how Cornell was "really . . . sensitive to the rights of both the parties." I wonder if Mingle could get one criminal defense attorney (besides, that is, Mary Beth Grant, who once worked as a legal aid attorney) to agree to that statement.
We share KC’s disappointment that yet another university is choosing to turn the basic principles of judicial fairness upside down by granting students facing more serious charges less in the way of procedural protection.