In the last few months, it seems as if there’s been a new due process lawsuit every other week. (While the Chronicle closely tracks accusers’ complaints to OCR, the higher-ed media has devoted scant attention to due process suits.) As more suits have been filed, it’s become easier to identify broader trends. Two recent complaints—from halfway across the country—show universities ignoring the results of police investigations, at least when the evidence doesn’t conform to the ideological biases of the campus Title IX office.
The cases occurred at Lynn University (in Florida) and the University of St. Thomas (in Minnesota). In both instances, hookups after drinking resulted in an allegation of sexual assault. In both instances, the accuser went to the police. In both instances, the police uncovered video evidence that contradicted the accuser’s version of events. At Lynn, campus security video called into question the accuser’s claim that she was incapacitated, and therefore couldn’t have consented. At St. Thomas, campus security video contradicted the accuser’s claim that she had no romantic connections with the student she’d accuse of rape; only when police informed her of the existence of video in the campus common area did she change her story and admit the two students had been kissing. (The accused student had made this claim all along.) In both instances, in part because of the video evidence impeaching the accuser’s credibility, the allegations were deemed unfounded.
And then, in both instances, the university found the accused student guilty—in part by excluding or downplaying evidence trained law enforcement had deemed vital, and in part through almost comically one-sided procedures.
Lynn reached its result through a type of procedural chicanery. (As with a disturbing number of accusations, the Lynn case appears to have involved a white accuser making an allegation against a student of color.) During the hearing, the accused student had only a “silent” advocate (his mother), while the school allowed the accuser to be represented by counsel, who allegedly participated in the hearing. As at many schools, Lynn prohibits cross-examination of the accuser, requiring the accused student to submit questions in writing. The accused student did so—and then the panel chair refused to ask the questions, on grounds that she “already knew the answers.” Lynn found the accused student guilty, on grounds that the accuser’s having consumed alcohol rendered her unable to “fully comprehend” that she had consented. Left unexplained: (1) how the university reached a different conclusion on this point than the police, using the video evidence; and (2) why Lynn didn’t use its own standard (incapacitation, not drunkenness) for cases in which an accuser couldn’t consent.
In the University of St. Thomas case, the university briefly persuaded the judge overseeing the case to seal the complaint. A redacted version of the complaint is now available. Last December, two UST students met at a party. Both had been drinking. They flirted and returned to the accuser’s dorm. They made out on the couch in a common area. They then had some form of sexual contact in the accuser’s bathroom.
The accuser subsequently informed police that she had been sexually assaulted. In the common room, she told police, she made clear that she had no interest in intercourse with the accused student; he then asked to use her bathroom, and attacked her without warning when she went in to check on him. The police reached out to the accused student; his lawyer said the sexual contact was consensual, and that the two had made out in the common area before entering the bathroom. The police set up another meeting with the accuser, asked her about the previous interaction—and informed her that campus security video of the common area existed. She then dramatically changed her story, and admitted that she hadn’t been candid with the officers. The police interviewed a variety of other witnesses, and ultimately concluded that the “facts” and “circumstances” of the case “don’t support charges.”
The accuser, however, simultaneously pursued charges through UST. At a meeting with the accused student, his father, and his lawyer, UST’s associate general counsel dismissed the results of the police inquiry, remarking that the state “always” declined prosecution of he-said/she-said cases. The counsel then denied the accused student access to the common room video that was critical to the outcome of the police inquiry.
Under UST’s procedures, there isn’t a hearing, and therefore no cross-examination occurs. Instead, “factfinders” interview both parties, and other witnesses if necessary. No evidence exists that the accuser was asked about her shifting stories to the police. UST’s investigators found the accused student guilty, and he was suspended until the start of the fall 2017 semester. The accused student himself couldn’t see their report; his lawyer could, provided that he agreed not to make copies of it. He discovered that much of the report was redacted, weakening any chance of a meaningful appeal. UST denied the appeal—but extended the student’s suspension, without explanation, until the start of the spring 2018 semester.
Both of these cases (especially the St. Thomas one) are ambiguous; it’s possible that an assault occurred in either or even both instances. But the police appeared to have strong grounds in both cases not to bring charges. And rather than deal with the findings of trained law enforcement, both universities instead adopted procedures that limited the rights of the accused student, and removed or minimized evidence that had been critical to undermining the accuser’s credibility.
Commenting on the reaction to Baylor events, Robby Soave presciently worried “that Title IX is pushing schools in the wrong direction–away from police involvement.” The Lynn and UST cases go a step further—with OCR pressure (and administrators’ own ideological preconceptions) causing schools to undermine the results of the police investigations that occur.