Thursday, December 17, 2015

Harvard Law Professors Accused of Putting "the Chill on Campus Sexual Assault Victims"

Irwin Zalkin has written an article accusing 19 Harvard Law Professors of potentially derailing "the progress their university has made toward creating a fair and just process" towards sexual assault complainants.  Mr. Zalkin is a lawyer who represents individuals who allege they have been wronged by universities under Title IX. His major issue appears to be the professors' statements about the case where Brandon Winston was investigated for sexual assault.  We wrote about "The Hunting Ground" filmmakers' criticism of the professors' remarks about the movie here.  It's fair to say that Zalkin probably agrees with Kirby Dick and Amy Zierning's assessment of the professors.

Interestingly, Mr. Zalkin discusses an OCR investigation into Harvard Law school for
Title IX violations.  Zalkin writes:

What the 19 professors don't disclose is that the process they were involved in was so flawed that Harvard Law was investigated by the Department of Education, which found the process biased in favor of the accused. As a result, Harvard Law completely changed its adjudicative process, and no longer allows the Harvard Law faculty to make the final decision. Under the new and fairer process, it is almost certain that the sanction would have been upheld.

These are interesting points that Mr. Zalkin makes.  First, it appears that he believes a disciplinary system at a University is flawed if it favors the accused.   Certainly, any system which could result in the expulsion of a student with the second order effect of not being accepted into any other university, ought to favor the accused.  Shouldn't it?  Should not the burden of proof be on the governing body to determine that the accused committed the act for which he was accused before he endures expulsion?  A process that is biased in that it favors the accused is a fair process, particularly when you are the accused.

The second flaw that Zalkin notes is that Harvard Law faculty made the final decision regarding expulsion.  I'm not sure that lawyers having the final say on whether the accused is expelled is a bad thing when it comes to such a complex crime.  Certainly, they have more training in the law, so allowing lawyers to have a final say seems like it would be welcomed.  On the flip side, had a board made up of athletic coaches made a decision not to expel the student and the law professors overruled the decision, then I highly doubt that Mr. Zalkin would condemn the practice of lawyers having the final say.  Moreover, reasonable individuals would probably understand that football coaches should not be making expulsion decisions for charges of sexual assault.

For example, Senators Kirsten Gillibrand and Claire McCaskill are champions of Servicemembers who are alleged victims of sexual assault, and one of their major issue with the UCMJ was that Commanders could dismiss charges after a conviction at court-martial.  In fact, McCaskill used the dismissal of charges in a case at Aviano to amend the UCMJ and take away the Commander's authority to dismiss charges.  Gillibrand wants to take the UCMJ out of Commanders hands completely because they are not trained lawyers.  Quite frankly, trained lawyers should be in charge of prosecuting sexual assault in the military.

Likewise, Harvard should be commended for having a disciplinary system that is biased towards the accused and overseen by lawyers.  Such a system or comments by law professors favoring such a system should place no chill on campus sexual assault victims coming forward.  But, it strongly appears that Mr. Zalkin believes that such a system is not fair because it did not permit the sanctions against Brandon Winston to be upheld.  Such a results directed process is a very dangerous proposition.  I'm sure that had Mr. Zalkin been the victim of a false sexual assault allegation while in law school, then he would probably have a different opinion.