Over the past several years, I’ve done biannual reviews of Yale’s Spangler Reports, the only publications that document all sexual assault cases handled by a single university. These reports are (deliberately, I suspect) bare-bones, but nonetheless they frequently yield intriguing findings.
One of the three due process lawsuits against Cornell, however, has brought to light a more remarkable document. Prepared by Amanda Minikus, Cornell’s Judicial Codes Counselor, the document reviewed all sexual assault cases at Cornell during the 2013-2014 academic year. (The JCC is an independent body that assists students accused in the Cornell disciplinary process; it’s staffed by law students.)
Minikus’ key thesis: “In its efforts to swiftly revise its procedures and crack down on sexual misconduct, Cornell has implemented policy far beyond what is necessary to comply with OCR’s guidance and created a process fraught with inequities.”
For instance, despite silence on the issue from the Office for Civil Rights, accused students at Cornell are advised they have no right to remain silent. The faculty panel that pronounces final judgment hears only from the investigator, not the accused student. The accused student can have a lawyer, but the lawyer can’t actively participate in the disciplinary process. The accused student or his representative can’t cross-examine the accuser, even indirectly. The accused student or his representative has no right to the evidence gathered by the single investigator—on grounds that this constitutes “work product.” (After complaints, Cornell agreed to provide an “edited” version of this material.)
This point doesn’t get stressed enough. As troubling as OCR’s demands are, most universities (including all the Ivy League members) have enacted policies that go even further in denying due process to accused students. Minikus concedes that, per the Dear Colleague letter, Cornell had an interest in avoiding financial penalties from federal government—but it also had “an important interest in preserving Cornell’s commitment to due process and equitable procedural treatment.” Instead, Cornell wholly abandoned its commitment to due process.
Minikus wanted the school to move in the other direction. Since “the preponderance standard is grossly inconsistent with what should be required to impose a punishment so severe,” it should return to the clear and convincing standard for sexual assault allegations, and “reexamine” its decision to follow Dear Colleague letter.
The JCC also worried about the “immediate and severe” effects of interim punishments, which occur before the adjudication process has been completed. The JCC staffers noticed that every demand for an interim punishment filed by an accuser listed either that she “disliked” the accused student, or was uncomfortable with the accused student remaining on campus. But “if one student may be temporarily suspended merely because another student dislikes him or expresses discomfort,” the policy “becomes a tool for students to easily injure one another.”
Minikus’s other main points:
Disparity between treatment of students and of faculty. The report notes that Cornell seems willing to protect the due process rights of faculty accused of sexual misconduct, but not students—a “troubling disparity.” Through the 2013-4 academic year, faculty accused of sexual misconduct were adjudicated by the clear and convincing standard. They had access to all exculpatory evidence. They had a right to remain silent. They had a right to be represented by a lawyer throughout the process. They had a right to a full hearing. They had a right to cross-examine all witnesses, including their accuser. Students had none of those rights. Though Minikus was describing the 2013-4 procedures, the disparity remains.
Breadth of what Cornell considers sexual misconduct. For instance, one 2013-2014 case featured a female student who claimed that ten pairs of undergarments were missing, and therefore had been stolen from her room. She informed the Cornell single investigator-adjudicator that she suspected a male student with whom she’d had negative interactions had committed the crime. She had no evidence that he had done so; indeed, it appears she had no evidence that her undergarments had been stolen at all. But Cornell found the male student guilty of sexual misconduct after the single investigator-adjudicator considered the accuser’s suspicions more credible than the suspected student’s denials, even though the university investigation had uncovered no evidence that the accused student had done anything wrong. That finding—which doubtless will be interpreted by future employers as something equivalent to sexual assault—will remain on his transcript for life.
Gender. In all eight sexual assault cases during the 2013-2014 year, the accused student was male. After the sole male staffer was reassigned for unspecified reasons, all investigator-adjudicators were women, overseen by the Judicial Administrator, who also was a woman. The report noted the “troubling” dynamic of all accused students being male and all investigators being female.
Inconsistent procedures. Minikus detected occasions of seeming bias in Cornell’s approach—twice, polygraph examinations indicating accused student’s truthfulness were deemed inadmissible, on grounds that polygraph results are inadmissible in a criminal proceeding. “Note,” the JCC archly observed, “that investigators’ sudden reliance on the evidentiary standards to the criminal courts stands in contradistinction to their ordinary, emphatic insistence that [the Cornell policy] is an ‘educational’ process with relaxed evidentiary standards and without penal goals.”
Training. Cornell’s Title IX staff receive training from Markel Consulting, whose firm’s website states that his career “has been dedicated to pursuing justice for victims of crime.” A JCC associate attended the training (information for which is not public on the websites of either Markel or Cornell). The associate found that “the training focused primarily on how a school should proceed after a sexual assault took place. In short, the training assumed a sexual assault occurred.” This type of training, the JCC concluded, poorly served Cornell, since “beginning such training with the assumption that every allegation is valid does not train investigators to impartially assess complaints.” The JCC asked Cornell to publicize the training that Title IX officers received; Cornell so far hasn’t accepted that recommendation.
Finally, the JCC faulted Cornell for excluding students from the disciplinary process—since campus sexual assault allegations “frequently arise in social contexts that are characterized by generational norms . . . Behaviors that seem inappropriate to faculty members may actually reflect present-day campus customs or have explanations that are unapparent to older community members.” This lack of “familiarity with student social scene” can cause problems with judgment.
The Minikus document presents a depressing examination of one year in a major university’s sexual assault cases. You can read it here.
[Update, 28 July: The JCC did not publish an end-0f-year report last spring, but I was told by the current JCC chair that the organization will be producing a report next spring. All concerned with campus due process should look forward to the document.]