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Sunday, August 21, 2011

What constitutes "due process" for the accused in universities' hearings dealing with campus rape?

Peter Berkowitz has published an op-ed in the Wall Street Journal denouncing a "Dear Colleague" Letter from the Department of Education's Office of Civil Rights on the procedures that universities ought to use in adjudicating student of rape and sexual assault. Peter styles the OCR's guidance document as an "illiberal" attack on due process driven by the "dogmatism" of "postmodernists, radical feminists and critical legal studies scholars" who are "institutionalizing a presumption of guilt in sexual assault cases." Peter is upset that OCR recommends that universities reduce the procedural protections for students accused of rape below those provided by the criminal justice system. In particular, Peter takes issue with OCR's recommendation that universities hold the accuser merely to a "preponderance of the evidence" standard of proof, that the accusers get the same appeal rights as the accused, and that the accused not be given rights to confront or cross-examine the accuser. According to Peter, these recommendations are rooted in Feminist orthodoxy that "men are controlling, angry and deceitful" and that "women neither lie nor make errors in alleging that they have been sexually assaulted."

But Peter cannot be serious that all of the rights appropriate for a criminal case (where the stakes are loss of life or personal liberty) ought to be imported into an administrative hearing (where the stakes are suspension or expulsion from a particular educational institution). In particular, the BARD standard of proof is almost never used in administrative hearings. Entire families are expelled from public housing based on one member's drug activities even if the rest of the family was unaware of those activities, using the usual "preponderance of evidence" standard. (See HUD's guidebook, page 204). Conditional permanent residents are routinely deported in immigration hearings under INA section 216(b)(1) based on the "preponderance of the evidence" standard.

If aliens can be kicked out the country and tenants kicked out of their apartment based on the "preponderance of evidence" standard, then it hardly horrifies me that students can be expelled from a particular university based on the same standard. Moreover, I really doubt that Peter sincerely believes that "due process" generally requires the use of criminal procedures in administrative hearings. Instead, I fear that his judgment has been distorted by the ad hominem fallacy -- namely, that "the enemy of my enemy is my friend." Based on his dislike of those "postmodernists, radical feminists and critical legal studies scholars," Peter has been led to denounce perfectly sensible proposals because of their proponents rather than their merits.

This sort of ad hominem posturing is exactly the sort of thing that makes contemporary politics so dreary. It causes even the best of us to ignore our deep principles as soon as our opponents embrace them, just to score points against people we generally dislike.


Take Peter's denunciation of the OCR's proposal, couched as a call for more protection for the accused in university "campus rape" hearings. He focuses entirely on the OCR's motives -- all that male-hating feminism -- but he says nothing substantial about the actual merits of the OCR's process. Meanwhile he ignores the one genuine flaw in OCR's proposal that is unrelated to the alleged feminist origins of the proposal -- namely, that the policy is simply too centralized.

Consider, first, the merits of the OCR proposal. Frankly, neither I nor Peter nor anyone else who has not spent a lot of time in university administration can have any worthwhile opinion about how much process is properly "due" in these sorts of university hearings on campus rape. As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter's call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent. In any case, Peter says nothing about the managerial needs of university administrators, who are essentially landlords charged with fostering an atmosphere of trust among several thousand young and often immature tenants expected to interact in close settings with minimal supervision. Will Jarndyce v. Jarndyce-style procedural regularity lead to such delay in discipline (rustication, suspension, apologies, etc), that women feel intimidated and do not bring forward charges? This is surely an empirical question about which Peter might collect some data. Instead, he just blasts away at some alleged feminist orthodoxy.

Meanwhile, there is an enormous an obvious flaw with the OCR's proposal that Peter simply ignores: It might be that OCR is simply too centralized an institution to be defining administrative procedure for universities. In a federal system -- yes, I am harping on federalism again -- it makes sense to rely on subnational jurisdictions when contentious matters like sex and due process are on the line, unless one has reasons to believe that those subnational processes are irretrievably broken. Rather than try to proscribe some ideal level of process from Washington, D.C., OCR might instead collect data on how and why why university administrators have struck their particular balance of the rights of accused and accusers. If that data revealed some real indifference to the interests of the accusers, then perhaps an NPRM on the topic would be in order, stating why the university and state regulatory processes are believed to have failed in striking a good-faith balance. In short, OCR should not over-centralize process until they have explained why the university and state regulatory processes are incapable of taking the relevant interests into account.

Rather than denounce the OCR's one-size-fits-all bid for centralization, however, Peter instead proposes a bit of centralization of his own, proposing all sorts of criminal procedures for university "campus rape" hearings without explaining how these procedures fit with the community-fostering mission of universities. Why does Peter ignore the issue of over-centralization and instead adopt the mantle of an ACLU lawyer with an idée fixe about hyper-proceduralization? He'll have to speak for himself, but I suspect his decision was rooted in a desire to strike directly at those post-modern, feminist proponents of critical legal studies. After all, my preferred policy of decentralization is an admission that there is room for reasonable disagreement about how to run a university. That's not the sort of clarion call that can rouse the blood against an enemy. Indeed, decentralization may let those dastardly post-modern feminists win some victories on some campuses where they have strong support.

The prospect of those victories does not disturb me, because I believe that our federal system -- which includes our system of decentralized non-profit corporations called universities -- has robust procedures for give-and-take that will ultimately insure a balanced answer to a difficult question. But, in our hyper-polarized age, the bland and apparently indecisive position of the committed federalist is not a winner on any red-blooded op-ed page. Thus, we get instead a call for more criminal protections for the accused that goes beyond the wildest dreams of the ACLU. One might think that such calls for more criminal procedure fit oddly on the pages of the Wall Street Journal from a fellow at the Hoover Institute. Fueled by Oleanna-style anxieties about political correctness, however, writers can say the funniest things. Our age of ad hominem politics makes for strange bedfellows -- a natural consequence of thinking that the enemy of one's enemy is one's friend.

Posted by Rick Hills on August 21, 2011 at 01:37 PM | Permalink

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Excellent post, Rick.

Posted by: Paul Horwitz | Aug 21, 2011 4:27:50 PM

I'm somewhat persuaded by your decentralization arguments, at least within certain bounds. I think universities should be prevented, for instance, from expelling alleged rapists without any process at all, based solely on the accusation.

But to answer the implied question of why campus rape charges ought to demand a higher standard of proof than other administrative proceedings, I think it's because of the repetitional damage threatened by those proceedings. Expulsion from college is itself a serious reputational harm. It ostracizes one from peers and influential elites, and threatens future chances to obtain an education. In today's world, that can have a huge impact on the expelled student's future prospects. But expulsion on a rape charge is even more damaging, especially if there aren't meaningful confidentiality procedures for the accused (as there probably can't be without undue infringement on the victim's life.) Public opinion won't take different standards of proof into account, and will probably treat a rape-expulsion exactly like a rape conviction. Even low-level employment will be threatened, and there will be a major reputational harm in the accused community, much more severe than if he were expelled for, say, cheating on an exam.

In sum, I think it's a mistake to focus exclusively on the formal punishment. The university is lending its name and authority to an attack on the accused's reputation, and that mandates that special care be taken.

Posted by: Andrew MacKie-Mason | Aug 21, 2011 7:21:18 PM

Getting expelled from college for purportedly raping someone is far more severe than being expelled from public housing. There is a large private housing market that caters to the poor. There is not a large employment market for non-college-educated rapists (MacKie-Mason is correct, rape expulsion will be treated like rape conviction). But this is beside the point—perhaps the procedures for expelling indigents from public housing or aliens from the country are too harsh. The fact that those standards exist says something, but existence itself is not justification.

"As a conservative guy with a bit of a law-and-order streak and a daughter in college, I am not sure that Peter's call for more process in these hearings is a great idea: Maybe it is more important to assure a sense of security in a close-knit community than to insure the protection of the innocent."

If you had a son, maybe a sense of security in college means not arming female students with an option to expel any male student by claiming rape, with little or no negative consequences to the accuser, even if she's found to have lied. Regardless of the merits of Berkowitz's critique, I think you're being too flip about the consequences of being kicked out of college due to a false/spurious rape accusation.

Posted by: GU | Aug 21, 2011 8:18:34 PM

Two points:

1. I agree with you. The editorial was overdone.

2. As to those schools that entertain the perponderance standard, I assume that they'll apply the same standard to accusations of sexual harassment against faculty/ administrators.

Posted by: B Mulp | Aug 21, 2011 11:35:06 PM

GU writes:

Getting expelled from college for purportedly raping someone is far more severe than being expelled from public housing. There is a large private housing market that caters to the poor.

Spoken like a lifetime member of the professional middle class, GU! So your position is that housing markets work great for the poor, but somehow the market for higher education fails to produce an optimal adjudication process that balances the needs of universities' various middle- and upper-class customers? I find all of that hard to swallow -- and I'm a professional middle-class guy myself.

GU also writes:

If you had a son, maybe a sense of security in college means not arming female students with an option to expel any male student by claiming rape, with little or no negative consequences to the accuser, even if she's found to have lied.

Yes, indeed, GU, I would certainly feel less secure if universities "arm[ed] female students" with such "an option to expel any male student." But is such a dire prospect the product of David Mamet's fevered imagination, a sort of Freudian paranoia born of some unfortunate experience with a domineering mama, or is it a real empirical possibility? One cannot tell from Peter's op-ed, which cites zero evidence of such expulsions. An alternative scenario is that women who've been assaulted or raped stay silent for fear that their accusations will not be taken seriously or that the process will be interminable and ineffective.

Which prospect is more likely with adjudications of sexual misconduct -- false positives or false negatives? Neither you nor I nor Peter knows, GU: It is one of those questions about which people have intense emotions and very little reliable data. In such a circumstance of ineradicable uncertainty, I'd suggest that decentralization is the proper answer. You might disagree, but you cannot do so persuasively by assuming what needs to be proven -- namely, that universities are unreliable agents of male students and mysteriously arm half of their student body with weapons to expel the other half, to the outrage of alumni who fund them and the male half of their student body, all at the behest of those post-modern feminists who somehow have captured the management of these enterprises. Maybe this is an accurate story, or maybe it is just the Protocols of the Elders of Post-Modern Feminism -- a bizarre panicky neurosis that some shadowy spirit of Judith Butler somehow pulls all of the academic strings.

Which brings me to Andrew's comment: "The university is lending its name and authority to an attack on the accused's reputation, and that mandates that special care be taken." Right you are -- but what kind of special care, exactly? Certainly, every university gives the accused some presumption of innocence: The question is whether this presumption should be rebutted by a preponderance of evidence, clear and convincing evidence, evidence beyond a reasonable doubt, or some fourth unknown standard. Again, neither Peter nor you nor I know the answer: It all depends on our intuitions about probabilities which vary by ideology and gender and social background.

In short, despite GU's ipse dixit of armed and dangerous female students, we do not know the right substantive answer to the question of "how much process is enough?" So we need a second-order institutional answer: Which institution ought to decide how much process is enough? The OCR? The state legislatures and regents that regulate universities? Congress? The federal courts?

I suggest that relatively less decentralized institution are presumptively best suited for answering this question, especially if the various interested stakeholders seem to have a voice in those institutions. If any single university gets the answer wrong, then the damage is contained; If they get the answer right, their example will likely spread. As a Brandeisian conservative, I believe in markets. No one -- not Peter, certainly -- has suggested why the market for higher education is likely to fail worse than centralized government in choosing the right level of process. That's why I say to both Peter and the OCR, a pox on both of your different varieties of moral certainty: You should both confess that you do not have data to show that males are either under- or over-protected and let universities figure this one out for themselves.

Posted by: Rick Hills | Aug 21, 2011 11:49:43 PM

Rick, as I said I'm not disagreeing with you that decentralization might be the best bet (especially if colleges are open about their policies, and incoming students can use it as one point of reference when making the matriculation decision). My comment was aimed more at your suggestions of what your ideal standard is, towards the beginning of your post.

Posted by: Andrew MacKie-Mason | Aug 22, 2011 1:38:12 AM

Before joining the legal academy, I worked at the OCR Headquarters in Washington DC, the policy shop that issued the "Dear Colleague" letter that is the subject of this post and the WSJ op-ed. As a preliminary matter, I must note that I served under a different Assistant Secretary for Civil Rights. Accordingly, I cannot speak to the ideological inclinations or policy preferences of OCR as it currently exists.

I write to simply share that, during my time there, some staff attorneys expressed, at least in private, a centralization concern related to that which Professor Hills articulates above. Rather than rush to issue national blanket policy, the better approach, it was said, would be to support the regional offices which actually engage in enforcement efforts and investigations of complaints arising under Title IX. Under this view, OCR HQ should act in limited circumstances, such as where there was demonstrated conflict among the regional offices or a complete absence of applicable policy. In other words, the argument went, OCR HQ should facilitate the effectiveness of the troops on the ground, and should be fully informed when it does act by the difficulties and experiences of the regional offices, instead of run the risk of providing inflexible, uniform standards from a detached perch in DC. The federalism analogy is appropriate. There has been a sense for some years that OCR HQ should adjust its framework such that the regional offices closest to the facts are recognized as the heart of the office.

Posted by: Dawinder "Dave" S. Sidhu | Aug 22, 2011 2:13:24 AM

Surely most liberals, leftists and progressives can agree that it is a horrible injustice that people are deported and expelled from public housing on the basis of a preponderance of evidence standard. Administrative hearings that impose penalties of equal or greater severity than a criminal fine should require a full beyond a reasonable doubt standard. The fact that they don't is wrong - and that can't be used as the foundation for arguing that this other administrative hearing should also have a lower due process standard, even if there are compelling reasons in this case.

For what its worth I think that a far better argument can be made for a preponderance of the evidence standard in college administrative procedures for dealing with rape accusations, than for housing and immigration issues: the liberty and security of the alleged rape victim is at stake if their alleged attacker isn't expelled. No such parallel exists in the housing and immigration cases.

Posted by: SG | Aug 22, 2011 2:26:33 AM

1) How is decentralization consistent with the Federal Government imposing a standard of proof on colleges?

2) I didn't read Berkowitz as calling for a reasonable doubt standard in college admin cases. I thought he was asking for a clear and convincing standard.

3) In any event, I cannot understand why colleges and universities take it upon themselves to adjudicate claims of rape. Rape is a serious crime. Until recently, it was a capital offense in many states. What colleges ought to do when a student says she has been raped is to call the police and turn it over to them. If a rape has been committed, expulsion should be the least the rapist has to worry about.

The problem, of course, is that the vast majority of these cases are "she said, he said" consent cases fueled by too much alcohol and an anything goes attitude on college campuses. The police, properly in my view, will not prosecute very many cases where the girl gets drunk with a boy, they have sex, and she says she said no. They won't prosecute because juries won't convict. The feminists now in control of the Department of Education want to make sure that the men who can't be convicted nonetheless have their lives ruined. That's what this is all about.

Posted by: DBLS | Aug 22, 2011 10:06:08 AM

In response to Mr. Hills,

1. I did not indicate anywhere that evicting poor people from their dwelling is no big deal. Instead, I argue that in terms of overall impact on one's life, being expelled from college due to a rape allegation is more harmful than being evicted from public housing. The point is that the expelled student wears that albatross around his neck for life, while the expelled family will not be forever foreclosed from obtaining shelter. I think you're underselling the negative impact of expulsion on falsely or spuriously accused college students. So far you have not responded to this concern (and this is different from arguing about the likelihood of such occurrences).

Moreover, I find it strange that you chose to flag as reasonable an administrative procedure born out of the now discredited War on Drugs. With drugs as with rape, there are important societal interests in mitigating the harm from both, but using the utter failure of drug prohibition as a model for rape policy must be "the product of intense emotions" because I know you are too smart to have carefully crafted this argument.

2. Far from being brainwashed by David Mamet, I fear that universities might not adjudicate rape cases very well given their unflattering record of censoring free speech and not giving fair due process in those cases (see FIRE's website). Perhaps you disagree, but I find your slightly nasty implications about me uncalled for.

3. None of my comments are necessarily at odds with decentralization.

Posted by: GU | Aug 22, 2011 3:34:41 PM

My worry would be a that a preponderance of the evidence standard is too low in such cases, esp. when most administrative boards aren't well-equipped to handle such matters, and in effect, an accusation would be almost enough. All of this seems so abstract, but does anyone know, in practice, what would constitute enough evidence to warrant expulsion?

Posted by: Ronald C. Den Otter | Aug 23, 2011 11:08:34 AM

The Education Department's Office for Civil Rights (OCR) is wrong, although some of its critics have overstated their case against the colleges that have knuckled under to OCR's demands.

It's true that the Constitution does not require colleges to use a "beyond a reasonable doubt" standard or anything like it.

It's also true, however, that OCR's demand that colleges use the very lowest standard of proof (preponderance) is not in any way supported by the civil-rights cases it cites, or by Title IX's language.

Contrary to OCR's claims, it is perfectly reasonable, and perfectly consistent with the Supreme Court's Title IX rulings, for a college to use the "clear and convincing evidence" standard historically used by many colleges to adjudicate all college infractions (including but not limited to sexual harassment and rape).

Schools are not strictly liable under Title IX for harassment by students (and thus are not liable merely because harassment more likely than not happened), but are only liable in court for their own "deliberate indifference" to harassment that CAUSES the harassment to happen (and they are liable in administrative proceedings only for culpable failures in responding to harassment, be that negligence or deliberate indifference).

A school is not negligent -- much less "deliberately indifferent" -- because it uses the clear-and-convincing standard long applied under faculty collective bargaining agreements and some state university regulations.

OCR overreaches particularly severely in baselessly attacking cross-examination as somehow being a violation of Title IX, when cross-examination is ubiquitous in Title VII and Title IX sexual harassment court cases. Harassment plaintiffs are typically deposed and cross-examined, and lose cases precisely based on what they admit on cross-examination. See, e.g., Newman v. Federal Express Corp., 266 F.3d 401 (6th Cir. 2001).

If the courts -- which are the supreme interpreters of Title IX -- regard cross-examination of accusers as useful and helpful in adjudicating sexual harassment cases brought in court, why is it unreasonable for colleges to also employ cross-examination? What authority does OCR have to forbid a useful practice like cross-examination, which courts and legal scholars have described as "the most powerful engine for the discovery of truth ever devised by man"?

The courts obviously do not agree with OCR's claims that cross-examination is at odds with Title VII and Title IX rights.

Professor Hills is correct that OCR's demands are overreaching and a violation of principles of federalism. They contradict state collective bargaining agreements and, apparently, some state regulations, without any legitimate basis for doing so.

Posted by: Hans Bader | Aug 30, 2011 1:59:41 PM

I explain why the Education Department's Office for Civil Rights (OCR) is legally in the wrong and has misinterpreted Title IX in two commentaries available at the below links:

http://www.openmarket.org/2011/04/11/education-department-changes-burden-of-proof-in-sexual-harassment-cases-under-title-ix/

http://www.openmarket.org/2011/06/07/why-cross-examination-rights-matter-in-campus-sexual-harassment-cases-under-title-ix/

I once worked at the Education Department as an attorney in the Office for Civil Rights, in its Washington, D.C. headquarters.

Posted by: Hans Bader | Aug 30, 2011 2:05:28 PM

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