On the USA Today Op-Ed

I appreciate the warm words about the USA Today piece from Stuart and me; I thought I’d also respond to two critical comments I encountered on Twitter.

First was this tweet from Robb Jones, senior vice president and general counsel for claims management of United Educators, an insurance company that represents more than 1000 colleges and universities.

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To give a sense of the spirit through which UE approaches these lawsuits, one of its spinoff groups recently published a white paper entitled, “Sexual Assault Claims: Perpetrator as Plaintiff.” The concession that these were “alleged” perpetrators only appeared in the summary.

That said, Jones’ tweet is correct; a slight majority of the decisions have come on motions to dismiss. And in a few of those cases, the district court accepting all well-pled facts as true directly affected the outcome. For instance, the recent Williams decision came out of a complaint that relied (in part) on testimony from a Williams whistleblower whose allegations were untested. The standard also probably affected the outcome in Washington and Lee case (though the university subsequently settled) and might have affected the outcome in the Ohio State case.

If most of the decisions in favor of accused students resembled the Williams decision, it would minimize the significance of the total number of cases in which colleges have been on the losing side. But in the vast majority of the campus due process lawsuits, the core facts either weren’t in dispute or weren’t directly relevant to how the judge approached the motion to dismiss. For obvious reasons, colleges could not challenge the factual basis of the hearing transcript,  stated college policies, or investigative reports. There have been some cases, as well, where the accused student has tracked down additional evidence. (Amherst, for instance, never challenged that the accusing student sent the critical text messages that its investigator failed to discover.) And so, decisions like Amherst, or Brandeis, or DePauw, or CSU-Pueblo could have tone and content leaving little doubt where the judge might be going with the case.

To the extent that Jones sought to imply that the constellation of facts at the motion to dismiss stage favors the student, he almost certainly is wrong. Except in procedurally fluky cases like Amherst, these proceedings usually take place before the accused student can get access to the type of internal college documents or e-mails or officials’ testimony that proved so devastating to Brown or James Madison or (it seems, based on the oral argument in the First Circuit) BC.

This, doubtless, is one reason why so many schools have settled (presuably with the support of their insurance carrier) once they lose a motion to dismiss. And it’s a major reason why motions to dismiss are likely to be the final rulings in most campus due process federal lawsuits in the near future, as well.

Finally, it should go without saying that the relevant precedent in nearly every circuit is deferential, often extremely so, to the college. (The Second Circuit after Columbia is the exception here.) Consider the background to some of the cases that schools have won: Miami, despite Judge Susan Dlott confronting the “troubling” allegation that the university’s chief investigator discouraged an exculpatory witness from testifying; Case Western, despite Judge Christopher Boyko finding a “plausible claim that Plaintiff was innocent of the charges levied against him and that CWRU wrongly found that Plaintiff committed the offense”; Vassar, despite a procedure overseen by a colleague of the accuser’s father, and a hearing (more than one year after the incident) that did not hear from the last two people to see the accused and accuser on the night in question, in a case that solely depended on whether the accuser was intoxication. That, in cases dealing with campus rape tribunals, schools nonetheless have lost more than they’ve won since the Dear Colleague letter is remarkable.

Title IX Project founder Jody Shipper, meanwhile, added the following:

 

Accusers’ rights groups have increasingly defended the Obama administration’s legacy by deeming it a “civil rights” issue. Title IX is, unquestionably, a civil rights law. But unilateral interpretations of that statute by Russlynn Ali or Catherine Lhamon hardly deserve the deference of Loving.

Similarly, that Title IX is an “equity” law doesn’t mean the Dear Colleague letter’s demands were based on equity. If, in fact, campus procedures mirrored civil ones, few could object to the preponderance standard or the accuser’s right to appeal. But accused students lack many of the key protections available in civil cases: the right to discover evidence, including through a deposition; the right to have their lawyers cross-examine witnesses, including the accuser; and the right to have their cases decided in an open forum by an impartial judge and jury. In this respect, the Dear Colleague letter and its successors (rather inequitably) imposed two elements from civil procedure that would yield more guilty findings (preponderance, right of accuser to appeal a not-guilty finding), while discouraging (cross-examination by the parties, existence of hearings) or ignoring (meaningful legal representation, tribunals without a conflict of interest, problems with a lack of discovery in campus tribunals) features that would reduce the chances of wrongful findings of guilt.

With regard to the right of an accuser to appeal, campus Title IX procedures more closely resemble the criminal justice system. Unlike the civil system, most campus Title IX tribunals feature someone paid by the college, either presenting evidence (the campus investigator) to advance the claim of guilt or serving as a de facto prosecutor (as in the cases at UCSD, Cincinnati, and Duke). In short, the accused student faces not only the accuser, but also a college employee of some type. The accused student then is judged by a panel, consisting of people paid by the university, that—per OCR guidance—must be trained. No school has released its tribunal training material, but the few whose contents have leaked (Stanford, Middlebury, Ohio State) have been strongly one-sided.

Forcing a student who overcomes all these obstacles to then prove his innocence a second time is deeply unfair. That’s all the more so given that the appeals generally go before higher-ranking administrators—figures more sensitive to the potential financial (a possible OCR complaint), public relations, or institutional (protests from faculty or campus activists) drawbacks of returning too many not-guilty findings. No one should be surprised, then, to see the type of procedural abuses that have appeared in cases at James Madison, George Mason, and the University of Michigan, when the appeals process overturned an original not-guilty finding.

(Accused students subsequently prevailed in lawsuits against the first two schools; a motion to reconsider, based on new evidence obtained from a deposition by the accuser in an unrelated civil case, is pending after the court initially dismissed the complaint against Michigan.)

Amidst the debate of recent weeks, defenders of the Obama-era OCR policies have unconvincingly maintained that the Dear Colleague letter didn’t change much, because most schools already used the preponderance standard. (In her 2016 letter to James Lankford defending the work of the Obama-era OCR, Lhamon cited only to a FIRE study examined the standards of proof used in around 2 percent of the nation’s schools.) But even the Obama defenders haven’t claimed that before the Dear Colleague letter, a majority of schools allowed accusers to appeal not-guilty findings. No data on this issue exists, but in general, campus disciplinary systems (on all issues) seem to avoid double jeopardy, at least until the Dear Colleague letter.

My apologies if either of these points was unclear in the op-ed.

A final tweet, from campus security consultant (and Sabrina Rubin Erdely source, in support of the thesis of her retracted article) S. Daniel Carter, perhaps best illustrates the mindset of defenders of the Obama-era policies.

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As the quote Stuart and I used in the op-ed from Judge Saylor points out, assuming that the two sides in the hearing are a “survivor[]” and an “accused” student presumes guilt (unless the accused student can somehow prove that another student committed the offense that made the accuser a “survivor[]” of sexual assault). The point of the disciplinary hearing, as Saylor notes, is to determine whether the accuser is, in fact, a “survivor[],” and the primary interest of the college is in establishing the truth.

I suppose, however, that if you start with the presumption that students who file sexual assault complaints should simply be deemed “survivors,” the procedures currently used in colleges make some sense.

One thought on “On the USA Today Op-Ed

  1. This is the best discussion of questions surrounding appeals by the accuser that I can recall seeing. The only thing I would add is that the accused should not have his or her punishment increased after an unsuccessful appeal. When this happens, it is reasonable to assume that the increase is a retaliation.

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