Women’s Law Project Offers Flawed Criticism of Penn Law Profs’ Defense of Due Process

By March 10, 2015

Recently, Carol E. Tracy, Terry L. Fromson, and Amal Bass of the Women’s Law Project took to The Philadelphia Inquirer’s Philly.com in response to an open letter in which 16 University of Pennsylvania Law School professors criticized the university’s new sexual assault policy for disregarding student due process rights. Tracy, Fromson, and Bass, however, miss some legal and practical points that are key to assessing the complex issue of how colleges and universities should be handling the issue of campus sexual assault.

First, the trio argues in favor of the low “preponderance of the evidence” standard of proof, which allows for a guilty finding even when the factfinder is only 50.01 percent certain of the guilt of the accused. (In stark contrast, the standard of proof in criminal courts is closer to 98–99 percent certainty.) To wit:

The Office for Civil Rights of the U.S. Department of Education rightly requires schools to use the preponderance of the evidence standard because it is the one established for violations of civil rights laws, such as Title VII, which prohibits employment discrimination. In internal processes, the school is determining whether the respondent’s alleged conduct violated the school’s sexual misconduct policy.

That last sentence is right—and it explains why OCR’s rationale for mandating this standard of proof, and its claim that this is required by Title IX, is weak. Title IX governs institutions, not students. Individual students not employed by the university can violate a student conduct code or felony sexual assault statutes, but they can’t violate Title IX. The use of the preponderance standard in adjudicating allegations against the school does not necessarily require the use of that standard in adjudicating allegations against a student of a different type of violation. (For more on this point, see FIRE’s May 2011 response to OCR’s April 2011 “Dear Colleague” letter, which mandated use of the preponderance standard in university sexual misconduct proceedings.)

Additionally, any person facing civil claims in a court of law, whether it be the “person” of a university facing Title IX claims or a student or faculty member facing a civil suit for damages, is afforded a range of procedural safeguards that students in campus disciplinary hearings are denied, making a low standard of proof far less of an obstacle to a fair outcome. (Criminal courts, of course, provide even more substantial protections.)

Finally, we’d be remiss not to note again that this mandate to lower the standard of evidence was handed down through legally dubious means and not codified by federal statute—only set forth in “guidance” materials that aren’t really “guidance” at all, but in fact substantive regulations.

The authors next argue that campus disciplinary hearings don’t need to be modeled after criminal procedures because “[t]he process is administrative, not criminal.” While campus courts are indeed not criminal courts, that doesn’t change the fact that they are being forced to answer the same question that a criminal court answers: Was this offense committed by this person? Regardless of their legal responsibilities, anybody making an institutional determination of whether someone has committed a felony crime (especially one involving moral turpitude) has an unavoidable moral responsibility to do the best job they can of figuring out whether the accused actually did it.

Even if you are willing to ignore this moral responsibility, though, one cannot deny that the repercussions for students found to have raped another student are far more severe than that of other “administrative” hearings on campus—life-changing, even. Aside from potentially forfeiting tens of thousands of dollars in tuition, students falsely found guilty of sexual assault in a campus hearing will be hard pressed to apply to other colleges or jobs, and they bear the stigma of being labeled a rapist. There’s no comparable stigma for being labeled a plagiarist, for example. Worse, these problems persist even where a student is later exonerated. Recognizing this, the Supreme Court held in Goss v. Lopez (1975) that the due process required for a school hearing increases as the potential sanction for a violation increases in severity. Considering the effect a guilty finding will have on a student, therefore, colleges should adopt the intermediate “clear and convincing” standard of proof in sexual misconduct cases. (For further discussion of why such a standard is a good fit for campus sexual misconduct proceedings, see again our May 2011 response to OCR.)

Tracy, Fromson, and Bass also claim that active participation of counsel will turn the campus hearing into a “daunting criminal pseudocourtroom.” An accused student is facing the possibility of his or her career being derailed; he or she may face criminal charges; and statements in a campus hearing are often admissible against the accused in criminal court. Meanwhile, the accuser is being made to recount the details of a violent felony crime committed against his or her person. There is no way for such a serious situation not to be daunting.

Furthermore, denial of counsel is likely to make the situation worse, not better. Meaningful representation of the accuser and the accused will benefit both parties. As defense attorneys Matthew G. Kaiser and Justin Dillon have argued, competent lawyers can present their clients’ views and challenge the other party without seeming combative or emotional, perceptions that can hurt both the accused and the accuser. And as this story out of SUNY’s Stony Brook University demonstrates, colleges may expect the accuser to prosecute his or her own rape case. It’s difficult to see how turning this wrenching responsibility over to competent counsel would be worse for victims.

Finally, Tracy, Fromson, and Bass fault the Penn Law professors because “[t]hey do not mention that incapacitated victims cannot consent to sex.” This legal point, however, does not need restating because it is already a part of the law. Is anyone actually arguing that incapacitated victims can consent to sex? The professors’ lack of emphasis on this point does not indicate an opposition to it. Nor does the fact that some cases involve incapacitation negate the existence of cases where the accuser is intoxicated but not incapacitated—that is, where he or she has consumed alcohol but is still capable of consenting to sex. The system must be designed to properly handle those cases in addition to cases involving more obviously clear-cut facts.

Policies and procedures that adequately protect the rights of both the accuser and the accused ultimately benefit everyone. Due process protections don’t just keep innocent students from being punished; they also help ensure that findings are accurate and reliable. In turn, the campus community will trust the system. The Penn system, in contrast, by dispensing with due process, will only produce skepticism.

FIRE hopes that those inclined to reduce due process protections for accused students consider these points and recognize that protecting students from sexual assault does not require disregarding principles of due process.