Tuesday, April 10, 2012

Law professors: 'Dear Colleague' letter creates procedures that are 'Orwellian,' 'Kafkaesque,' and 'fundamentally unfair'

Rights Advocates Spar Over Policy on Sexual Assault

The Cornell Daily Sun, April 4, 2012

Victims of sexual assault could have an easier time proving their accusations if the University Assembly approves changes to campus policy next week. But opponents of the changes say that students accused of assault — who face expulsion from the University — would lose critical rights and safeguards if the U.A.’s resolution is approved.

The debate about how to protect victims’ rights without creating a system that unfairly treats the accused has been raging at Cornell for a year. With the U.A.’s vote next week, the discussion may finally reach a conclusion.

The proposed changes, which were endorsed by a U.A. committee in February after extensive debate, would lower the standard of proof required in sexual assault accusations. They would also move the process for adjudicating the regulations out of the Campus Code of Conduct and into the system that is already used for faculty and staff accused of assault.

That existing system, known as Policy 6.4, calls for an investigator to gather the facts relating to the accusation, decide whether the alleged assault occurred and then recommend corrective actions.

That process is markedly different from the one currently in place for accusations against students. The existing system, under the Code of Conduct, includes a variety of protections for the accused — protections modeled after the criminal justice system — that Policy 6.4 does not incorporate. Among them is the use of the University Hearing Board, which hears arguments by the opposing sides and then makes a decision. The UHB is composed of members of the Cornell community, including students, who have received special training in order to receive their positions on the board. Under the Code, both sides of the dispute can also bring in outside lawyers to help argue their cases.

The proposed changes are promoted by victim advocates, who say the new system would create a fairer process and better protect students who have been sexually assaulted.

Policy 6.4, which was adopted in July 1996, “has provided a fair, effective and prompt process for both parties,” Nelson Roth, deputy University counsel, said in a letter to the U.A.

Eva Drago ’12, who is on the board of the Women’s Resource Center, told The Sun last semester that she would support a process that prevents sexual assault victims from having to detail their experiences to fellow students — who currently sit on the UHB — and that will limit the role of lawyers, who can currently cross-examine victims when the cases are presented. Both of those changes would take place if the process were moved to Policy 6.4.

Still, the proposal faces opposition.

“The consequences for someone expelled for sexual assault are enormous and will follow him throughout his life, leading to rejection by other schools, inability to qualify for the bar and a great deal of stigma,” Prof. Cynthia Bowman, law, said in a statement to the U.A. “To impose those consequences on someone requires a rigorous standard of proof and many due process protections to ensure fairness.”

“Indeed, there is general agreement among faculty at the Law School that the procedures being proposed are Orwellian,” she added.

Prof. Kevin Clermont, law, who serves on the U.A.’s Codes and Judicial Committee and has been a vocal opponent of proposals to lower the burden of proof in sexual assault cases, said he agrees with Bowman’s sentiment.

“Not all would characterize the procedure as Orwellian; some have used instead the term Kafkaesque,” he said. “Across the political spectrum, law professors are in agreement that such an administrative procedure is fundamentally unfair.”

Matt Campbell law, who is also on the CJC, argued that the move to Policy 6.4 “should be rejected full stop.” He wrote to the U.A. that accepting the proposal would result in “removing all safeguards provided by the Campus Code (including lowering the burden of proof) and divorcing students from the process of making future modifications regarding this issue.”

Ahead of the U.A.’s meeting — which is scheduled for Tuesday afternoon — the assembly’s chair, Melissa Lukasiewicz ’14, will hold a question and answer session on the proposed changes. The session will take place on Monday at 2:30 p.m. in B16 Day Hall, Lukasiewicz said.

The debate over how to respond to sexual assault accusations has grown out of a temporary amendment to the Code of Conduct — which will remain in effect until a new resolution is passed — that was hurriedly approved last spring to ensure the University stayed in compliance with new U.S. Department of Education directives.

An office within the Department of Education issued a letter last April to schools and universities that, Cornell administrators argued, required the University to make immediate changes to its process for dealing with sexual assault accusations in order to remain in compliance with Title IX — a federal law that prohibits discrimination on the basis of gender in educational programs funded by the federal government.

If Cornell did not make the changes quickly, the administrators said, the University would be “out of compliance” and could be sanctioned by the Education Department.

However, in her letter to the U.A., Bowman wrote that the Education Department’s directive “is not an administrative regulation, has not been subjected to notice and comment, and thus does not have the status of law.”

In deciding how to respond to the department’s letter, Bowman said: “The University should focus on precisely what its goal should be. Is it merely to conform in order to eliminate any possibility of losing federal funds? Although even a private university receiving federal funds is subject to this sanction, it has, in fact, never been applied. Is it to reduce any possibility of legal liability on the part of the University? Or is it to produce a campus free of sexual violence? Taking sexual harassment and sexual offenses out of the Code will not accomplish either of these last two goals.”

But Roth, the deputy University counsel, disagreed with Bowman’s reading of the letter. He said that the Department of Education had made it clear that a system, such as Cornell’s, that does not give equal rights to the victim and the accused is not fair and equitable.

The temporary amendment that resulted from the government’s letter lowered the burden of proof required in sexual assault cases, making it easier for a student to win a case against another student. It also gave the accuser the same rights as the accused student to appeal the decision.

The amendment led to a burden of proof in sexual assault cases that is lower than the burden required for other offenses in the Code of Conduct. The disparity created the philosophical question of whether it made sense to have different burdens of proof for different accusations within the same Code, and it created the practical question of how a case should be decided if a student was accused of both sexual assault and another offense.

“I don’t think that it will work to keep it the way it is now,” Judicial Administrator Mary Beth Grant J.D. ’88, told The Sun in November, referring to the differing standards of proof in the Code.

That concern is part of the motivation behind the resolution on which the U.A. will vote next week. If the assembly approves the proposal, it will be sent to President David Skorton for his signature.

http://cornellsun.com/section/news/content/2012/04/04/rights-advocates-spar-over-policy-sexual-assault