Penn Law School faculty, students clash over adjudication policies

Members of the University of Pennsylvania Law School’s faculty published an open letter criticizing the university’s new processes for investigating and adjudicating sexual assault last week. The 16 Penn faculty members who signed the letter (nearly one-third of the law school’s tenured or tenure-track professors) argue that the new policies are fundamentally unfair to those accused of sexual assault. On Tuesday, 36 Penn law students published a response to the faculty, arguing that the faculty letter conflated protections afforded to criminal defendants with “fundamental fairness” in school disciplinary proceedings, perpetuated dangerous notions about survivors and victims of sexual assault, and was driven by sexism.

Penn’s new policies come in light of guidelines issued by the U.S. Department of Education’s Office of Civil Rights in order to enforce Title IX regulations. The Penn faculty letter joins an October 2014 letter from Harvard faculty members and a host of opinion pieces in national media condemning new policies, specifically what many see as a lack of due process for the accused. Advocates for campus survivors of sexual assault say that fair process for the accused is in fact central to Title IX and that the Department of Education’s protections for those accused of assault exceed those for students confronted with other disciplinary charges.

The university has defended its policies’ fairness and adherence to federal guidelines thus far. “Penn developed the new process as a fair and balanced process to address the serious issue of sexual assault on campus, and we believe the process responds appropriately to the federal government’s regulations and guidance,” University Spokesman Ron Ozio told the Philadelphia Inquirer after the faculty published the letter.

The Penn faculty open the letter by acknowledging that the larger problem is in fact the existence of rape culture and the number of sexual assaults which occur on campus. “Although our comments and criticisms focus on universities’ procedures for adjudicating sexual assault complaints, we recognize the far more important issue: how can universities help to change the culture and attitudes that lead to sexual assaults?” the letter reads.

The faculty members point to excessive use of alcohol and drugs by students and the “troubling ambiguities on questions such as what constitutes valid consent” as factors in “fuel[ing] the conditions that lead to contested sexual assault complaints.”

In October, Governor of California Jerry Brown approved an affirmative consent law, aimed at helping colleges and universities eliminate this type of “troubling” ambiguity. The law, which drew an enormous amount of criticism in national media, requires that students engaging in sexual activity establish affirmative consent and seeks to create a clear threshold that specifically cannot include a person’s silence, a lack of resistance, or consent given while intoxicated. Critics, meanwhile, characterized the affirmative consent law as unclear, complicated, unfair, and extreme.

The Penn faculty also argue, as many nationally published commentators have, that law enforcement should handle “more serious” sexual assault cases, rather than campus administrators, though they note that this process is not always accessible to or supportive of sexual assault complainants.

“It is not altogether clear … why the federal government requires such serious cases to be handled by campus tribunals staffed by academics, instead of by professional judges and lawyers,” the letter reads. In fact, the federal government does not require that disciplinary cases for sexual assault be handled by campus authorities — schools are free to hire outside adjudicators, as Swarthmore does, in full compliance with federal regulations.

Advocates for survivors of campus sexual assaults have noted that Title IX does not replace criminal law, but offers an option for students who require help staying in school after sexual abuse. Advocates also say that victims and survivors have repeatedly and overwhelmingly stated that, were schools to turn over their reports of assault to police, they would choose not to report at all.

The letter-writers specify four concerns pertaining to “fundamental fairness” about the new disciplinary process for accused students. First, the faculty take issue with the new policy’s stipulation that lawyers and other representatives for the accused are not allowed to cross-examine the witnesses against the accused. Second, the faculty argue that too much power is concentrated in the hands of the team charged with investigating the sexual assault, and that a fair procedure would allow the accused student’s lawyer or representative to challenge the investigative team’s report. Third, the faculty charge that the preponderance standard required under the OCR’s guidelines is too low and should be raised to one which “provides a more durable safeguard against wrongful ‘convictions.’” Finally, the faculty write that the new policy does not adequately protect the accused student’s right against self-incrimination in cases in which a criminal prosecution may occur.

The Penn law students argue in their response that the faculty letter “perpetuates the harmful myth that survivors of sexual violence should be disbelieved, silenced, and denied non-criminal relief unless they seek and obtain criminal conviction of their assailant.”

The students first state that the faculty “have misstated the law of due process in the university setting.” Private universities, the law students note, are free to discipline students without any process whatsoever. “Thus, the ‘Open Letter’ must be seen for what it is: a disagreement with Title IX’s mandate that sexual assault survivors not be made to struggle through grievance procedures that specifically insulate those accused of sexual assault,” the students write. The students take issue with this disagreement, as they see Title IX and the OCR’s guidance as designed to fight the effects of sexism on campus.

They also note that, though Penn’s data on discipline is lacking, disciplinary procedures “are generally remarkable for the lack of consequences for those found to have committed a sexual assault,” and that only between 13 and 30 percent of students found responsible for sexual assault in university adjudications are expelled. Additionally, the students express their concerns that the Penn faculty letter, which the students believe is not based in law, will be taken as such by the public.

Furthermore, the law students draw explicit connections between the faculty letter and sexism in their evaluation of the faculty’s argument about the evidentiary standard.

“It is well established that due process allows state schools to expel students for any misconduct using an even lower evidentiary standard than that at issue here, that of ‘substantial evidence.’ Why do you think it should be legally harder to expel someone for rape than for moving newspapers, or cheating or assaulting a police officer?” the students ask. “Do you also think that people facing criminal rape charges should get special protections not afforded to other criminal defendants? Or is your concern only for Ivy League men accused of rape? One thing is certain: your concern in this ‘Open Letter’ is not for those of us who have been and will be sexually assaulted.”

The student letter closes with an admonishment of the faculty. “[The concerns] expressed in your open letter … are anxieties born of uninformed and unexamined sexism. This attempt by sixteen learned law professors to — unwittingly, it seems — cover your sexist policy preferences with a patina of legal authority exemplifies the pervasive bias against women that Title IX was enacted to address.”

The faculty letter echoes not only the concerns raised by Harvard law faculty and national commentators, but also those raised in the lawsuit filed by an anonymous student against Swarthmore in January of last year. The anonymous student, known as John Doe, was found responsible for sexual misconduct in the spring of 2013. Doe’s attorney claimed that the college made Doe into “the whipping boy that Swarthmore needed to demonstrate its own zero tolerance standard” and that his due process rights were violated. The college settled with Doe in December and vacated its finding against him.

The Penn faculty repeat a concern related to one of the main charges Doe and his attorney leveled against Swarthmore: that the college sought to punish accused students too harshly in light of an explosion of media coverage and overeagerness to demonstrate compliance with federal regulations. “It should not be forgotten that these proceedings are conducted in the shadow of threats of a Department of Education Investigation for failure to properly investigate and sanction students for alleged misconduct … a hearing panel may not feel free to acquit without repercussions,” the faculty letter reads.

Advocates for survivors of campus sexual assault have raised a number of other concerns surrounding the disciplinary process. In an article for the Huffington Post, reporter Tyler Kinkade noted that many students who are disciplined by schools for sexual assault can and do transfer to new universities without any repercussions. Administrators are not required to note the details of disciplinary action in students’ files, nor are schools which accept transfer students required to check records at previous institutions. Even if this type of verification takes place, full disclosure of students’ disciplinary records is not required.

Experts and campus advocates have noted that this process allows serial predators to commit new offenses elsewhere, and point to research which indicates that the majority of sexual assaults perpetrated on campuses are committed by repeat offenders. Jesse Matthew, Jr., for instance, who is accused of abducting and planning to sexually assault University of Virginia sophomore Hannah Graham, was previously accused of sexual assault three times. Matthew was accused while attending Liberty University in Lynchburg, Va., in 2002, and left the school the same month. In January of 2003, Matthew enrolled at Christopher Newport University in Newport News, Va., and left nine months later after another accusation of sexual assault. Graham went missing in September, and her remains were discovered five weeks later.

Here at Swarthmore, Hope Brinn ’15 and two other students accused another student of sexual assault. Ten days before the student’s hearing was scheduled, he withdrew from the college. Brinn later heard that the accused assailant had enrolled at another major university, she told the Huffington Post.

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