Friday, January 17, 2014

Colleges think men accused of sexual assault get too much of that due process and fairness stuff

In colleges across America, students accused of serious offenses that might result in long-term suspension or even expulsion are not permitted to have attorneys represent them by actively participating in campus hearings. This prohibition against lawyers is applicable even to cases involving sexual assault where, because of a Department of Education fiat handed down in April 2011, colleges must find a student guilty if a mere preponderance of the evidence (ever slightly more than 50%) supports guilt. That means that a college disciplinary board can have reasonable doubt, or very serious concerns, about whether a student is actually guilty but must still find him responsible if the evidence tips ever so slightly against him.

The consequences for someone expelled for sexual assault are life-altering. Prof. Cynthia Bowman of Cornell said "they will follow him throughout his life." Even Brett Sokolow, the most prominent champion for sexual assault victims' rights in American academia, has expressed concerns about the consequences of expulsion and has said "that a lot of colleges now are expelling and suspending people they shouldn’t, for fear they’ll get nailed on Title IX.”

In Virginia, Delegate Rick Morris has introduced a bill that would grant students facing college disciplinary charges punishable by a suspension of more than 10 days or expulsion the right to be represented by an attorney or other advocate of the student’s choosing.

Mr. Morris had better be prepared for a fight. Last year, North Carolina passed a similar law, and university officials were not happy about it.

Lynn Roeder, Dean of Students at East Carolina, said she that adding attorneys to the disciplinary process would take away an opportunity for students to learn from their mistakes. She said: "'The whole process is not to be adversarial . . . . We know students make mistakes and what we want to do it make sure we’re able to help them make better decisions so that’s why we never had lawyers.'”

How do you know a student made a "mistake" without a fair hearing, Ms. Roeder? Wait. It gets better:
"A key component of the developmental process of responding to student misconduct is for the student to take responsibility for their own behavior and to learn from the incident," said Bill Haggard, vice chancellor for student affairs at the University of North Carolina at Asheville. "Part of that learning experience is being able to speak on their own behalf, take responsibility for their own behaviors and engage in a conversation about changing their behavior in the future."

That will be a whole lot less likely, officials say, if students have a lawyer speaking for them. 
"It's obviously something that most student affairs professionals are not that crazy about," Haggard said.
The problem with these assertions is that they assume the student accused of the offense must be guilty. After all, an innocent student shouldn't be forced to "take responsibility for his own behaviors" or "change" his behavior "in the future," should he?  Mr. Haggard has it exactly backwards: the university should have a fair hearing first, and only if the evidence supports a finding of guilt should there then be a "conversation about changing . . . behaviors."

Other "concerns" expressed about having a lawyer present: "Officials worry that changing the rules will drag out the length of proceedings -- by who knows how long, if attorneys are able to do things like motion for stays . . . ." And: "It raises lots of potential questions and problems and it makes what is an educational and administrative process now into a quasi-courtroom."

Imagine! Turning a proceeding where testimony and other evidence is admitted, the facts are weighed and applied to university policies written in legalese, and a life-altering judgment is handed down -- into one that assures a minimal level of fairness, due process protections, and the orderly administration of justice! What exactly are those meddling legislators thinking!

We appreciate the value of informality for minor offenses, but proceedings on charges of sexual assault should not be run as a free-for-all. Allowing a lawyer to speak and to insist on fairness for a scared, callow young man accused of very serious charges doesn't give the accused the upper hand, it just helps levels the playing field.  It is astounding that we've reached the stage on campus where that is an offensive notion.