Thursday, November 17, 2011

Some at Cornell Voice Concern That the 'Dear Colleague' Mandates Were Rushed Into the Campus Code of Conduct Without Following the Usual Procedure

This morning, the Cornell Daily Sun chronicles a debate over the school's handling of sexual assault cases. It notes that last May, Cornell's University Assembly rushed a "temporary amendment" to its Campus Code of Conduct in response to the Department of Education's April 4 "Dear Colleague" letter without adhering to the typical procedure of awaiting a recommendation from the University Assembly’s Codes and Judicial Committee. 

The "Dear Colleague" letter has been criticized by numerous commentators. Many of those criticisms are collected here. Among other problems, the "Dear Colleague" letter insists that schools using standards of proof higher than a "preponderance of the evidence" are not in compliance with the law. Cornell previously applied a "clear and convincing" standard. In addition, the "Dear Colleague" letter mandates that schools allow appeals of unfavorable rulings by not only the accused but the accuser as well.

The Daily Sun notes that Cornell Judicial Administrator Mary Beth Grant, J.D. ’88, who investigates accusations against students and decides whether to pursue cases, admitted that she was pushing for the amendment to be passed quickly. According to quotations attributed to Ms. Grant in the story, Ms.Grant seems to agree with the "Dear Colleague" letter's premise that Cornell's handling of sexual assault cases was "unfair."  Specifically, she said the letter “pointed out to us that our system is unfair.” And: “I don’t want to be in a position where I know something is unfair and I’m being forced to do it.”

Some in the Cornell community are not happy with the process used to approve the temporary amendment. “There was, in fact, no rush whatsoever,” said Prof. Kevin Clermont, law, a member of the committee. “It’s unprecedented, as far as I know, this kind of stepping in and circumventing [the CJC].”

What, exactly, was so terribly "unfair" and in need of immediate correction, about the school's procedure? Let us briefly examine some of the arguments posited.

I.  Sexual Assault Cases are Difficult to Prove

The Daily Sun story notes that "victim advocates applauded the lower standard, which they had been pushing for before the Department of Education letter was released. Laura Weiss, director of the Women’s Resource Center, said sexual assault cases are often based on 'he said, she said' testimony and include little physical evidence."

First, while finding a student guilty of a heinous sex offense that could alter the course of his life should not be easy, it is by no means impossible to do exactly that under a "clear and convincing" standard. In fact, rapists are routinely convicted in criminal courts under the "beyond a reasonable doubt" standard, which is even higher than the "clear and convincing" standard.

Second, and more important, the victim advocates have it exactly backwards: the absence of hard evidence to prove any offense is a sound reason to be wary about finding men guilty of it, not a valid justification to make it easier to punish the innocent with the guilty. Even in common law civil proceedings where the relief is typically monetary, many states impose a standard of proof higher than "preponderance of the evidence" for certain "he said, she said" claims, e.g., claims predicated on oral promises and fraud.  It is well to note that a student's interest in attaining a college education, with all it entails, and in not being expelled for rape, is weightier than is a civil plaintiff's interest in obtaining a money judgment over a dispute involving commodities in the marketplace.

Third, the new rule has resulted in a system where the offense that is typically the most serious that a college disciplinary board will be asked to consider, and that carries with it the greatest penalty, is conducted under a standard of proof lower than the standard applied to minor offenses that carry, on average, lesser penalties.

Put it this way: if someone told you that there was a 50.1 percent chance that your parachute would open, would you jump out of the plane? The question scarcely survives its statement. Yet, the Obama administration thinks that this level of certainty is sufficient for colleges to make a life-altering decision about young men accused of heinous sex offenses. To put it more bluntly, young men may be expelled even if the college disciplinary board is 49.9 percent certain that he's innocent.

II.  Accuser and Accused Should Be Treated Equally

According to the Daily Sun, victim advocates said that it makes sense to create an equal right to appeal, since the Campus Code of Conduct is not the criminal justice system, and it’s possible for mistakes to hurt either the accuser or the accused.  Laura Weiss, of the Women’s Resource Center, added that preventing a sexual assault victim from appealing a decision reinforces a perception that victims are often wrong.

These arguments are offensive to persons steeped in the traditions of American jurisprudence.  Allowing an accuser to appeal an acquittal and to subject the accused to a second hearing (and, theoretically, endless more) raises the same serious concerns about double jeopardy that civilized people have had since the time of the Norman conquest. To insist that these concerns have no application here, since college disciplinary proceedings are not criminal proceedings, and to treat college proceedings as akin to civil proceedings for money damages, trivializes a student's interest in obtaining an education and in not being expelled for rape. That interest is sufficiently weighty to mandate a very serious dialogue about these issues.

More fundamentally, there is no equivalence, moral or otherwise, between punishing men for rapes they didn't commit and allowing a rape to go unpunished. A wrongful acquittal is a terrible thing, but a wrongful acquittal is never the moral equivalent of a punishing a man for a crime he didn't commit. This long-settled principle was famously expressed by the celebrated English jurist William Blackstone, who said it is "better that ten guilty persons escape than that one innocent suffer." (Commentaries on the Laws of England, 1765.) But it dates to time immemorial -- even to the book of Genesis, when God made it clear that he would spare the guilty so as not to sweep away the innocent with them in Sodom and Gomorrah.


The decision to rush the temporary amendment into the Code of Conduct without adhering to the school's procedure, apparently based on a school administrator's personal belief that Cornell's then-current system was "unfair," is troubling.

There is ample legal precedent to ignore the Department of Education's "Dear Colleague" mandate, and to challenge it if necessary. The leading commentator on this issue is former Department of Education attorney Hans Bader. See here

It is well to note that regulations of the Department of Education are supposed to follow existing law. Yet, just last week, progressive Senator Patrick Leahy announced that he would not include the Department of Education's standards in the reauthorization of the Violence Against Women Act. See here. Leahy apparently bowed to pressure brought by FIRE, S.A.V.E. and outlets such as this. While this doesn't mean that the Department of Education isn't following existing law, it is merely to point out that Congress itself is not prepared to give the "Dear Colleague" letter's standards statutory articulation. And, as noted above, Mr. Bader makes a strong argument that the "Dear Colleague" letter does not follow existing law.

Most troubling of all in the Cornell debate is the politicization of a very serious issue.  The public discourse on campus sexual assault is typically dominated by organized, paid, victim's advocates whose interests, unfortunately, do not include insuring that the innocent aren't punished with the rapists. While the concerns expressed in this post are likely shared by the vast majority of students and professors on campus, their voices are rarely heard on issues like this because few of them have the same level of interest in these issues as the paid advocates. Hopefully, the persons insisting that the school slow down, and deliberate, will allow more voices to be heard.