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Background
On the heels of ten University of Minnesota Golden Gophers being suspended from the football team due to allegations of sexual assault, the Gophers have boycotted all football-related activities, potentially including the Holiday Bowl. (The players ended their boycott after, you know, reading the University's student handbook.) Those suspensions occurred subsequent to a school investigation and a police investigation where the actions of four players were investigated but not charged by the Hennepin County (Twin Cities) prosecutor.
The University's Title IX / EOE report is about as vile as you can read: a recruit and a football player entice a woman into a dorm room where the report seems to indicate that there was sexual activity (And, note, in the full report, whether consent was voluntary is very much an open question.) However, from there, the incident spirals into a nightmare: as many as 14-16 men, nearly all students, most football players, trapped her in a bathroom, stole her clothes, and by the accounts of a witness, a cell phone video, the victim, and some physical evidence, proceeded to gang rape her.
The University’s Office of Equal Opportunity and Affirmative Action recommended that the four players, and six others UMN students, be suspended based on "facts and our University’s values," pending a complete university disciplinary proceeding and any appeals.
The boycotting players had a list of demands, among them was due process for the accused. Under the present system, however, the actions of the University of Minnesota not only constituted a fair proceeding but will likely also serve as model for other major universities going forward.
Administrative agencies sign away constitutional protections with the stroke of pen
Whether you agree with the boycott or not, the Minnesota players' demands were doomed from the start because, as with most things involving sexual assault on campus these days, it all goes back to Baylor.
In August of 2015 football player Sam Ukwuachu was convicted of sexual assault. Note: a criminal case requires a much higher burden of proof, beyond a reasonable doubt, than is required of Universities (more about that later). However, the Baylor investigation that cleared him using a preponderance of evidence standard (again, more later). Baylor’s findings led to a Title IX investigation on campus, an independent law firm investigation, the firing of a Head Coach and subsequent litigation.
Baylor, as we know, is a damned mess. In an attempt not to be a similar damned mess, colleges and universities across the country are, perhaps, overreacting. But at the same time, they are responding to directives sent down from the federal government.
The Office of Civil Rights is the federal agency charged with enforcing federal anti-discrimination statutes. The relevant statute here is Title IX of the Education Amendments of 1972, which expressly forbids discrimination on the basis of sex. This law gives us the funding of women's athletics. But, it also gives the Office of Civil Rights (OCR) the jurisdiction to oversee compliance with federal laws (Title IX, also Title VI of the Civil Rights Act of 1964) by every college or university nationwide that accepts federal funding.
If your school accepts money from the federal government (which includes most private schools, too,) then OCR gets to enforce these laws. When we talk about federal funding, we are also talking about research grants, and federally-backed student loans. Thus if a school fails to comply with OCR directives, bye bye federal funding, which has much the same effect of bye bye school.
In 2011, the OCR issued a "Dear Colleague" letter about sexual assault on campus. In that letter, the Assistant Secretary for Civil Rights set forth new requirements that ALL schools accepting federal money had to meet in order for the schools' investigation of sexual assaults to be compliant with what the OCR deemed appropriate. As a part of this letter, OCR recommended (read "required") that the burden of proof go from "clear and convincing evidence" to a "preponderance" standard. That is the most significant change as a practical matter; as legal matter, the letter raises far more serious concerns.
Civil standards applied to serious criminal matters
What does the change of this evidentiary threshold mean? "Preponderance of the evidence", the standard applied to civil matters is a much lower hurdle to clear, as you would expect. Essentially, one looks at the evidence, and if there's 50.1% in favor of a finding against the accused, then there is a finding against the accused. "Clear and convincing" means that the evidence has to be much more heavily weighted in favor of a finding against the accused. It is not all the way to "beyond a reasonable doubt," but the two are close neighbors.
Other changes set forth by the OCR are a restriction of the role of counsel for the respondent -- a lawyer can be present but may not represent the accused; the requirement that the complainant be permitted to appeal the decision of the college -- not just the accused; and, that the definition of sexual harassment has been broadened dramatically. That definition has taken on a life of its own that is so broad as to lack any meaning, "any unwelcome conduct of a sexual nature… including verbal conduct."
The problem with the preponderance standard in this specific setting is that there’s no right of cross-examination, no right to perform an investigation on one’s behalf if accused. Let's compare this with civil trials. Those also have a "preponderance" standard, but when I'm doing a civil trial, I have the right to cross-examine witnesses, to issue my own subpoenas and compel a witness to attend in person, the right to pre-trial hearings on whether or not certain evidence is to be admitted.
In OCR cases, there's not only no constitutional protections for the accused, there are not even evidentiary protections in place: The accused can not call witnesses. The accused cannot question or enter into the record evidence of a complainant's mental state. The accused cannot enter into evidence previous statements of the complainant or previous specific actions which may indicate consent. As a practical matter of fact, there is a bias in the campus process against the accused.
Why is that so bad? If the bar to clear for a finding against the accused is only 50.1%, and there is an inherent bias against the accused from the start, how likely do you think that it is that the accused will get a fair, unbiased hearing?
In many instances, the colleges don't tell you with any specificity what you've been accused of doing. In one case I handled, the accused was charged with "possible sexual misconduct on [X date]." That was the sum total of the charges against him. What the heck does that even mean? If you don't know what you're being charged with, then how can you possibly mount a defense? This is particularly relevant in a charge where, by all accounts, there was sexual conduct- he says it was consensual, she says it wasn't...sorta. Some of it was. Some of it wasn’t, she said. What specific acts were not consented to? Who knows, and the schools may insist on interviewing the accused before any specific details become known.
By attending a University that receives federal funding, students have unknowingly signed away their Constitutional protections.
Sword and Shield: FERPA is both being violated and hides hearings behind closed doors
Gone are the days of "this will be on your permanent record," (but it will be private). In 1974, Congress enacted FERPA, the Family Educational Rights and Privacy Act. FERPA ensured that, outside of the student and his/her parents, a student’s educational records were to be held in confidence. But the Supreme Court, the internet, and to some extent FERPA itself, has gutted the law.
The Supreme Court found that there was no personal right of action, meaning you can’t sue if the University discloses your information (Gonzaga v. Doe), and even if the school does not disclose your info, it is incredibly likely that in can be found on the world wide web. Furthermore, FERPA allows a University to disclose to anyone —not just the victim— the final results of a disciplinary proceeding, if it determines that the student is an alleged perpetrator of a crime of violence or non-forcible sex offense, and with respect to the allegation made against him or her, the student has committed a violation of the institution's rules or policies.
And, since the hearing involves the private record of another student, the accused can't release the complete details of the hearing. Gotcha.
Due process
Well all of this seems unfair, you may be thinking.
When we speak of "fairness", in a legal sense, it is nothing more than trying to constitutionally protect our own gut instincts of what is right and wrong, how level the playing field should be, and to make sure our proceedings and tribunals mirror that collective gut instinct to the extent possible. We call these safeguards of fairness due process.
The constitution provides for two forms of due process, procedural and substantive -- and Title IX proceedings violate both to a shameful extent.
Procedural due process is a very easy threshold to meet. To be procedurally fair, all that is required is to give the respondent a notice that a tribunal is being held, and then provide the respondent with a meaningful opportunity to be heard. The "meaningful opportunity to be heard" encompasses substantive due process -- that is, what we think of as a fundamentally fair hearing: whether the tribunal followed its own rules, whether constitutional protections are in place, whether there is a chance to have the respondent's evidence considered, and whether or not the decision of the tribunal can be appealed to a final or higher authority.
But, as we've seen above, there is often not a meaningful opportunity to be heard by the tribunal. Constitutional safeguards are not in place, not all relevant evidence is considered, there is not a right to confront the accuser, there is not a right to be represented, there is not a right to have witnesses, there is not a right to even know what the charges are against an accused student, and, worse, in many cases, the mere fact that there is an allegation against the student is used as evidence that the allegation is true.
This is the very definition of a kangaroo court.
In a very real sense, every card in the deck is stacked against a student. And, if found responsible by an administrative Banana Republic, the student who has been deemed "guilty" is in an absolute bind. He or she can be dismissed, and be deprived of an implied constitutional right of education. But, if the student attempts to transfer or to enter another university, FERPA requires that the results, but not the facts, of the sexual assault hearing be disclosed. In most cases, the results must also be disclosed when seeking professional licensure, security clearances, and many background checks. This leads to further deprivation of educational and occupational opportunities -- and all stem from a system that is procedurally and substantively unfair.
Nevertheless, under the Office of Civil Rights' "Dear Colleague" directive, justice has been done, despite the fact universities are in broadcloth violation of the Constitution.
Conclusion
Minnesota's case is a particularly trying one, even for those like the authors with formal legal education. You and I collectively want a just, fair outcome, and that speaks to our inherent sense of decency and outrage: Here we have a very sympathetic, credible victim; we have a true question as to whether consent was obtained from the first two alleged offenders; we have a bevy of physical evidence; we have witnesses who may or may not have statements and testimony that meet the constitutional and procedural safeguards of admissibility; we have a University who has followed its own rules and the OCR's mandates to the absolute letter. Worse, given the inaction by Twin Cities prosecutors, the school may represent the only real justice available to this victim.
But, it is the hard cases that make the worst precedent. When we try to achieve what we think approximates a just outcome, we set the stage for an abuse of the system, for administrators not quite so diligent as Minnesota, for evidence that isn't quite as credible, or, in many cases, doesn't exist beyond bare allegation or a notice of the charge -- if the accused is lucky.
It is one of the most morally troubling things in our system of law to grasp, but the system and those constitutional safeguards were neither built nor exist for the benefit of the victims: the right to confront your accused, to be apprised of charges, to be judged by one's peers, to present witnesses and evidence on one's behalf, to be free from self-incrimination, to have a proceeding that is fundamentally fair, to have a hearing on bail, to have allegations heard quickly, to have representation at every meaningful stage of the proceedings, to have one's punishment free of unnecessary cruelty or disproportionality, not one of those are for the benefit of the victims; they exist for the accused.
We do not always live up to those standards, to be sure. But it in no way follows that we should lower the bar by placing the deprivation of constitutionally-protected rights into the hands of unelected and largely unaccountable administrators, with varying systems of what constitutes procedural fairness, with a much lower standard of evidence (that in many cases is procured by the judges themselves,) with none of the safeguards guaranteed by the constitution, and then place the entire proceeding behind a veil of secrecy.
RAINN (Rape, Abuse and Incest National Network,) a major advocacy outfit, summed up the entire unconstitutional morass perfectly:
"While we respect the seriousness with which many schools treat such internal processes, and the good intentions and good faith of many who devote their time to participating in such processes, the simple fact is that these internal boards were designed to adjudicate charges like plagiarism, not violent felonies. The crime of rape just does not fit the capabilities of such boards. They often offer the worst of both worlds: they lack protections for the accused while often tormenting victims."
The University of Minnesota has by all accounts acted thoroughly, diligently, fairly; it has followed the letter of the law and the very spirit of the OCR's "Dear Colleague' directives. Minnesota would claim that its system is procedurally fair in that the accused have a notice of a hearing and the chance to be heard. The university would also claim that it has met substantive due process by following the rules set forth, in this case, by the Orwellian-named Office of Civil Rights. However, the very agency tasked with protecting civil rights has instead defined out of existence the rights of the accused.
The Constitution requires that tribunals tasked with depriving citizens of their liberties must be the very institutions who most diligently respect and safeguard the rights of the accused.
Universities have the resources to do neither, and federal administrators have no constitutional authority to do otherwise.
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About the authors:
Blanx was a public defender in a past life, before discovering the world of insurance defense and then plaintiff’s practice. He is presently working on Title IX litigation at the moment, and it is a Kafkaesque labyrinth of close-lipped administrators and insufficient evidence. He is has a selective private civil practice in Detroit, where he just takes people's money now instead of their liberties.
Greg has spent his entire career as a public defender, a criminal defense attorney, and now has a private criminal appellate practice. Like Blanx, Greg has serious misgivings about the rights of the accused in Title IX tribunals and the lowered evidentiary burden. Greg lives in, and practices from, Guatemala and hangs out with his dog, Steve.
Erik has clerked in Frozen State's courts, has worked as a state's attorney, and once even defended a criminal case. He is most troubled by the constitutional dimensions and insufficiency of due process and fundamental fairness. He is in private practice in a place with Elvis, basketball, and excellent barbecue.