College Attorneys Face the War on Due Process

June 27, 2014

By KC Johnson at Minding the Campus

The Chronicle has a revealing piece on a group largely overlooked in the war on due process—college attorneys, who since 2011 have been aggressively pressured to establish systems to investigate one of the most serious offenses in the criminal justices system (sexual assault) with few, and in some cases none, of the tools available to law enforcement.

Reporter Eric Kelderman writes, “In conversations with lawyers here at the annual meeting of the National Association of College and University Attorneys, . . . [they] expressed frustration that their institutions were being held to a different standard than even law-enforcement agencies and were being given increasingly complex rules that sometimes go well beyond their capacity.”

According to Kelderman, the college attorneys raised two separate issues. The first focused on the differences between the capabilities of the college disciplinary process and a criminal investigation. It’s hard to imagine investigating a sexual assault without, at minimum: (1) access to the contemporaneous e-mails/text messages of the accuser and accused; (2) access to the post-incident medical examination of the accused; and (3) access to physical evidence (for instance, DNA samples or surveillance video outside the scene of the alleged incident). Yet since colleges and universities lack subpoena power, they can’t obtain any of this information, except perhaps surveillance video from campus dorms that have such equipment. To the best of my knowledge, neither the OCR nor anti-due process “activists” have never explained why they believe colleges are capable of effectively investigating sexual assault claims without the tools provided by subpoena power.

Second, according to Kelderman college attorneys raised the issue of how the OCR’s re-interpretation of Title IX has robbed colleges of all discretion. In a criminal case, prosecutors can decline to file charges if they deem an accuser non-credible; police, too, could simply stop investigating an allegation if they determine an accuser’s story makes no sense. But colleges don’t have such discretionary authority. If anything, it’s just the reverse: as OCR made clear in its settlement letter with SUNY, even if the police investigate a sexual assault complaint and conclude the accuser is lying, the college must independently investigate the complaint. (And since the school lacks subpoena power, it might not have access to the evidence that allowed the police to make their determination, compounding the risk of an incorrect finding.)

It should come as little surprise that in a movement so dismissive of due process that these concerns have attracted virtually no interest from either OCR or the activists. This attitude appears to have taken aback even the Democratic senators who have affiliated themselves with the issue. As FIRE’s Susan Kruth recounted, at a recent Senate roundtable on the issue, Connecticut senator Richard Blumenthal wanted to know “what lawmakers can do to ensure that students’ due process rights are respected.”

The activists weren’t interested in responding to Blumenthal; Georgetown Law Research Fellow Nancy Chi Cantalupo told the senator that as long as colleges followed their own procedures, whatever they might be, the school had provided sufficient due process. Indeed, as Kruth noted, the logic of Cantalupo’s expressed support for an “even playing field” between accuser and accused would be a dispensing of the presumption of innocence—a development that has effectively occurred at many schools.In the end, unless judges intervene, the situation seems likely to get worse for due process rather than better.