Right On: Kangaroo courts on campus

September 27, 2017 Utah Channel 3

OPINION — College sexual assaults are all too frequent and sadly, often devolve into a “he said, she said” conundrum.

Addressing the issue, Obama’s Education Department issued a “Dear Colleague letter” to college administrators describing how to handle sexual assault complaints. The department meant well but blatantly disregarded legal due process for those accused of sexual assault.

Implicit was the threat of losing federal funding. Getting a “guidance” letter from the folks who provide almost $140 billion per year in postsecondary education funding is like getting guidance from Darth Vader.

Colleges complied, setting up the requested kangaroo courts.

The letter’s “guidance” sounds eerily like a show trial in one of Stalin’s “people’s courts” where verdicts were never in doubt:

Assign a single college administrator to investigate each case as a de facto prosecutor, judge and jury.
Dispense with bothersome legal formalities like a clear statement of allegations, the right to legal representation, adequate time to prepare a defense, access to relevant evidence, the right to cross-examine the accuser and a meaningful appeal process.
Render judgment using the low “preponderance of evidence” normally applied to civil cases rather than the “beyond all reasonable doubt” standard required in criminal cases.
Complete the process within 60 days of the complaint.

I put quotation marks around the word “guidance” since the Obama administration ignored the federal Administrative Procedures Act’s rule-making requirements. But the letter was in fact a rule masquerading as “guidance.”

The letter was formulated without the public hearings, comment periods and other mechanisms required by the act. These steps were put in place to avoid unintended consequences like those arising in this situation.

Let me be clear: Most sexual assaults on and around college campuses are committed by young men who deserve to be punished. Colleges need appropriate processes to deal with assaults, to discipline perpetrators and to protect students.

In 2014, the federal Bureau of Justice Statistics found that 6.1 college women per 1,000 had been sexually assaulted and that in 80 percent of the cases, the attacker was known to the victim.

Use of physical force or violence is criminal assault and should be dealt with by police and the courts. But many of these assaults occurred when the woman was incapacitated, most often due to alcohol or drugs.

Back in possession of her senses, a previously-incapacitated young woman is traumatized and often embarrassed, ashamed and reluctant to file a complaint.

Incapacitated BYU student victims were especially reluctant to come forward. The school’s honor code prohibits premarital sex and the use of alcohol. Reporting an assault opened the victim to an honor-code investigation that could result in expulsion.

Under pressure, BYU subsequently stopped honor-code reviews of sexual assault victims. BYU’s policy change had the salutary effect of encouraging more young women to step forward and report assaults.

Unfortunately, the federal study found that 80 percent of all college assaults were not reported to the police. Overcoming this reluctance is both important and difficult.

Important because colleges can’t deal with problems they don’t know exist and they have a responsibility to warn and educate students to prevent future occurrences.

Difficult because administering justice in a “he said, she said” situation is a challenge. Usually there are no witnesses and complaints are often filed days or even years later.

“He said, she said” cases are common in civil disputes such as divorce proceedings. Such cases are decided on the basis of preponderance of evidence. Even then however, as attorney Jennifer Ellis explains, “The word of one person, in and of itself, is rarely enough to win a civil case.”

Yet following the “guidance” letter, one young woman’s word, in and of itself, can permanently change the life of a young man.

Attorney Robert Smith, leader of Boston law firm LeClair Ryan’s Colleges and Universities Team said:

Any competent detective will tell you that these cases often reduce to ‘he said, she said’ arguments and involve complex questions relating to anonymity, racial bias, intoxication, subjective interpretation of sexual intent and behavior, and more.

Forcing educators to be criminal investigators charged with sorting out such psychosexual dynamics is a tall order, especially in light of (the) 60-day deadline for resolution of these cases.

The result, unsurprisingly, has been a travesty of injustice, incompetence and inconsistency as schools struggled to comply. Many institutions, often small colleges with limited resources, are now engulfed in lawsuits flowing, again unsurprisingly, from these kangaroo courts.

Four feminist Harvard law professors argue for fairness for all students: “The Education Department has pressured colleges and universities to adopt overbroad definitions of wrongdoing that are unfair to both men and women, and to set up procedures for handling complaints that are deeply skewed against the accused and also unfair to accusers.”

Dozens of liberal law professors from across the country have expressed serious concerns about the Obama administration’s unlawful and blunderbuss approach to a complex problem.

In response to these concerns, Education Secretary Betsy DeVos recently announced that her department is withdrawing the “well-intentioned but flawed” guidance letter. DeVos said that “one rape is one too many” but that “one person denied due process is one too many.” DeVos declared that “every student accused of sexual misconduct must know that guilt is not predetermined.”

Due process should not be a liberal or a conservative issue. Almost all the law professors expressing concern were liberals. Nonetheless, Democratic politicians and progressive activists expressed kneejerk, partisan opposition.

Replacing the guidance letter with an effective and lawful federal rule will require a variety of inputs, consensus building and goodwill. As DeVos said, “The era of rule by letter is over.”

I’m with Harvard’s liberal feminist law professors on this one.

Howard Sierer is an opinion columnist for St. George News. The opinions stated in this article are his own and may not be representative of St. George News.

Email: hsierer@stgeorgeutah.com

Twitter: @STGnews