Warning: Try Not to Have Sex at Stanford

June 9, 2014

By KC Johnson at Minding the Campus

Slate‘s Emily Bazelon recently took a look at the tensions in campus sexual assault matters by looking into a the case of Leah Francis, a Stanford student who said that she was brutally raped on campus. Though Bazelon conceded due process problems, her column suggested that issues regarding campus due process are likely to get worse before they get better.

Bazelon’s piece examined a particularly ugly allegation at Stanford, albeit in a one-sided manner. (Bazelon extensively, and uncritically, quoted from Michelle Dauber, the Stanford law professor who played a key role in pushing through a new procedure that weakened due process protections for students accused of sexual assault, and she neither spoke to nor obtained documents from the accused student.) Nonetheless, if the allegations are true, the accused student should have been sent to jail. (The accuser in the case does not appear to have gone to the police, for reasons unexplained by Bazelon.) Instead, the accused student was convicted by Stanford, suspended, but not expelled. When he returned to campus, Francis launched a public relations campaign in protest.

To Bazelon, Francis’ case poses a dilemma. On the one hand, she argues, Stanford’s punishment was too lenient, and she seems to believe that the school should follow the lead of Duke and establish expulsion as the presumptive penalty for students convicted of sexual assault under the school’s new standards. On the other, she’s troubled by the demand in the “Dear Colleague” letter that colleges employ the preponderance-of-evidence threshold to brand a student a rapist. Accordingly, she urges coupling a presumption-of-expulsion policy with a return to a clear-and-convincing evidence (around 75 percent) threshold.

There are three problems with this recommendation for Stanford, the subject of Bazelon’s article. First, the proposed compromise is wholly impractical. It seems plausible, even likely, that under media and “activist” pressure most schools will follow Duke’s lead and move toward a presumption of expulsion, even when the actual offense falls far short of what law enforcement would consider a sexual assault. Meanwhile, there’s virtually no chance that the current OCR will abandon its preponderance-of-evidence guidelines, and there’s no indication of any meaningful political pushback.

Second, with regards to Stanford, Bazelon’s compromise would not mitigate the severe problems with due process that the school currently has. Indeed, Bazelon seems to praise Stanford’s Alternative Resolution Process, which dramatically increased the chances of a student being found guilty of rape. (This seemed to be Professor Dauber’s intent in backing the program.) The ARP eliminates the right of cross-examination, allows non-unanimous findings of guilt, and relies on training materials for the disciplinary panels that, among other things, teach that an accused student presenting his case logically is a sign of guilt. The first step toward restoring due process at Stanford would be repealing the ARP.

Third, given its location in California, Stanford likely will be subject to a further erosion of due process protections for the accused. Inside Higher Ed reports that the California State Senate has passed the so-called “affirmative consent” bill, deeming it “the responsibility of the person who wants to engage in initiating the sexual activity to ensure that he or she has the consent of the other person to engage in the sexual activity.” As FIRE’s Joe Cohn pointed out, creating a video or audio recording of the sexual encounter would, under the bill, be the only sure way an accused student could prove he obtained consent.

In a preponderance-of-evidence scheme like Stanford’s ARP, the California bill essentially creates a presumption of guilt. Even the ARP, as it currently stands, doesn’t require a student to prove his innocence. But the California bill does, by shifting the burden of proof to the accused student, who would have to prove that he obtained consent. If the bill is passed, at schools like Stanford any accused student would almost certainly be found guilty, unless he could (without the benefit of cross-examination or compelled discovery, and facing a jury trained to doubt his veracity) actually prove that his accuser was lying.

Count on Stanford to soon join the list of schools facing a due process lawsuit from a student found guilty under the ARP.