Following Harvard Law School faculty’s lead, 16 of the University of Pennsylvania Law School’s 49 tenured and tenure-track faculty members signed on to a letter detailing the ways in which Penn’s new sexual assault policy fails to protect students’ rights. Tuesday’s letter makes several points that will sound familiar to Torch readers and that FIRE sincerely hopes the Penn administration carefully considers.
The Penn Law professors believe, as FIRE does, that working to prevent and respond to sexual assault on campus does not require “subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses.” The professors rightly take issue with both the mandates of the Department of Education’s Office for Civil Rights (OCR) and the way in which OCR is implementing new requirements for colleges and universities.
For example, the professors question whether OCR overstepped its authority in issuing its April 2011 “Dear Colleague” letter:
Fourth, in addressing the issue of sexual assault, the federal government has sidestepped the usual procedures for making law. Congress has passed no statute requiring universities to reform their campus disciplinary procedures. OCR has not gone through the notice-and-comment rulemaking required to promulgate a new regulation. Instead, OCR has issued several guidance letters whose legal status is questionable. It is this guidance that purports to require universities to retreat from the clear-and-convincing standard of proof to a preponderance-of-the-evidence standard, which requires a finding of responsibility even if the factfinder is almost 50% sure that the accused student is not guilty. In addition, OCR has used threats of investigation and loss of federal funding to intimidate universities into going further than even the guidance requires.
FIRE has been objecting on the same grounds since 2011, and we hope to see more institutions push back against OCR.
Among the professors’ other excellent points, they oppose Penn’s prohibition of cross-examining witnesses against accused students, a critically important means of assessing whether those witnesses are truthful. The professors’ letter also notes that students accused of sexual misconduct who wish to defend themselves in a campus hearing may have their statements used against them in any criminal case that arises. As a result, accused students “may be forced to the cruel choice of defending the University charges at the risk of compromising his rights in the criminal case.”
The letter concludes with a reminder that “concerns about fundamental fairness are not academic or theoretical in nature.” Recent events make this all too clear:
There are documented cases of a rush to judgment on charges of sexual misconduct at universities, including the Duke Lacrosse case and the recent events at the University of Virginia. In the criminal justice system, there have been a large number of post-conviction exonerations of persons convicted of serious crimes, including many sexual assault cases. Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our peril. All too often, outrage at heinous crimes becomes a justification for shortcuts in our adjudicatory processes. These actions are unwise and contradict our principles. We can and should provide protection and support for those who are subject to sexual abuse, and at the same time provide a fair process that is calculated to yield a reliable factual determination. Ultimately, there is nothing inconsistent with a policy that both strongly condemns and punishes sexual misconduct and ensures a fair adjudicatory process.
The full letter is available online.