Among the dozens of due process cases filed since the Dear Colleague letter’s appearance, the most significant factor in the outcome is the randomness of judicial assignments. Apart from a small number of cases (several, oddly, from Texas), the lawsuit cases are ones in which the college process was unfair, and the allegation was (at best) dubious. A judge inclined to find a way to produce a fair decision—Judge Dennis Saylor is the best example—will have more than enough facts with which to work.
But the general law on the question remains unclear, with precedents often dating from the period of deference, rooted in the idea that judges shouldn’t second-guess college disciplinary decisions because academics, not judges, know best what constitutes plagiarism, or what kind of conduct violates campus norms. Colleges deserve no deference in adjudicating felonies like sexual assault. But the worst decisions—Judge Abrams’ in the Vassar case, Judge Furman’s in the Columbia case—have featured judges bending over backwards to ignore the facts before them and decide for the college or university.
Last month, Senior U.S. District Judge Sandra Beckwith, a George H.W. Bush appointee, joined this undistinguished list. She heard a lawsuit filed by two accused students at the University of Cincinnati. Even in the world of university sexual assault investigations, UC’s conduct was particularly bad. The university seemed indifferent to potential exculpatory evidence (a security videotape of the dorm as the parties entered). A police detective investigating the case leveled the explosive charge that UC had tried to obstruct a simultaneous criminal investigation, apparently to bolster to accusers’ case. Both accused students were informed that neither party had the burden of proof, therefore abandoning the presumption of innocence. UC allowed one accuser to testify and then flee the room before she could be cross-examined—without then striking her testimony from the record, as basic fairness should require. The university cited a case involving a Connecticut high school student for its refusal to permit meaningful cross-examination. UC allowed the accusers to give a “victim impact statement” before the panel had adjudicated the issue—and determine which party, if either, was actually a “victim.”
None of this record troubled Judge Beckwith, who sided with the University of Cincinnati in all respects. You can read her full opinion here.
Judge Beckwith interpreted the relevant precedent as not having “clearly established that [the accused students] were entitled to the presumption of innocence,” or that they “could not be assigned the burden of proof.”
It’s true that since issuance of the Dear Colleague letter, colleges and universities have frequently presumed guilt. But they generally go through the motions of providing fairness. So it’s jarring to see a federal judge suggest that students accused of sexual assault don’t have a right to be presumed innocent. Even Judges Abrams and Furman didn’t go this far.
Judge Beckwith also offered a remarkable defense of UC’s decision to deny the accused students the right to a lawyer in the proceedings. Because UC elected to have a student life bureaucrat (who was expert in sexual assault proceedings) rather than a lawyer prosecute the case, the accused students couldn’t plausibly claim a right to an attorney. The case, this life-tenured judge added, didn’t have “unusually complex” rules. She was talking, of course, about an allegation in which (in one of the cases) an undergraduate student was forced to defend himself on a rape allegation. The Beckwith standard would provide a roadmap for schools to further weaken accused students’ rights.
According to Beckwith, none of these findings are inconsistent with her belief that “a student faced with expulsion or other discipline for violating school rules is entitled to due process before he can be deprived of his interest in continuing his education.”
In ostrich-like fashion, Beckwith concluded that “it is not reasonable to infer that UC has a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding.” She only had to look across town—to Xavier—to recognize the folly of that statement.
Beckwith also dismissed the accused students’ Title IX claim, with the usual reasoning that the UC system at most was biased against accused students, and even though (as she noted in another part of the opinion) accused students are almost always male, there’s no gender component here. She also could not “conceive of an argument” that UC’s (undisputed in the record) never having found a student not guilty under the current disciplinary system suggested constitutionally problematic conduct.
Judge Beckwith leaned heavily on a 2005 6th Circuit case involving the University of Miami, which kicked out a medical school student—who was first charged for a felony drug offense and then pled guilty to a felony. The idea that public universities should be expected to give the same degree of due process to criminals as to students who were never charged with a criminal offense is bizarre.
Judge Beckwith’s conception of what constitutes “due process” is extraordinarily cramped. The students have appealed. Will the 6th Circuit agree that “due process” means that accused students aren’t entitled to the presumption of innocence?