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Thursday, September 17, 2015

Debate: Courts, not Campuses, Should Decide Sexual Assault Cases (And Susan Brownmiller Shocker)

Jed Rubenfeld and Jeannie Suk (for) and Michelle Anderson and Stephen Schulhofer (against) participated in an interesting and  extensive debate on this question on September 16; video here.  One of the most notable aspects of the discussion was the systematic doubt about the capacity of courts to be fair.  Professor Suk noted that campus disciplinary proceedings had a disproportionate impact on the poor and minorities; Dean Anderson responded, to oversimplify, that Ferguson and other incidents make clear that the criminal justice system is worse.  All sides agreed that there are excesses in campus discipline which are appropriately being weeded out in courts.  Again, to oversimplify, Professor Schulhofer argued nevertheless that campus discipline was necessary for fairness to the accused; given draconian sexual assault sentences, the power of prosecutors, the pressure of sweet pleas, and the unreliability of juries, some form of accountability other than prosecution was necessary so that the lives of minor offenders (or alleged offenders) were not ruined.   Taken together, I think most or all parties might agree that the criminal justice system has often been disrespectful of victims, dismissive of sexual assault claims, and also sometimes arbitrary and brutal to those charged with or convicted of sex offenses.  If this is so, one wonders what makes the character or ability of professors and administrators so much higher that better results are likely in the academy.  

An aside: At a couple of points, the argument seemed to be made that campus discipline was private while criminal cases are public; as I read FERPA, though, a finding of liability for a campus sex offense is not confidential under federal law. (20 U.S.C. 1232g(b)(6))

Another aside:   Susan Brownmiller, unquestionably one of the intellectual leaders of the post-Eisenhower reform of rape law, s[p]its all over campus rape activism in an interview in New York Magazine.  Some key points:  "They think they can drink as much as men, which is crazy because they can't drink as much as men. I find the position 'Don't blame us, we're survivors' to be appalling." "The slut marches bothered me, too, when they said you can wear whatever you want. Well sure, but you look like a hooker." Ms. Brownmiller is 80; there may be a generational difference at play here.

Posted by Jack Chin on September 17, 2015 at 11:48 AM | Permalink


Anyone who suggests that campus discipline is more fair than real courts would have us believe you can get a fair trial from the Group of 88, one of whose members boasted that he "comes into intellectual spaces like a thug."

Could any reasonable person take seriously the argument that despite their department's unanimity all 88 of the Group of 88 are the exceptions, not the rule? Including Theresa Sullivan, whose "case" against the innocent Phi Kappa Psi fraternity was based on a story in an entertainment tabloid, would of course bring the count of those "exceptions" to 89.

It's not just OCR that is toxic; it is the campus environment itself. The ENTIRE SYSTEM is corrupt. Nothing OCR does or doesn't do will change the level of fairness of your trial when Wahneema Lubiano and her like-minded peers are judge, jury, and executioner. (Actually an OCR that cared about due process probably could drain the swamp, but that's never going to happen, as OCR is as other commenters have rightly pointed out just as corrupt.)

How many real courts would ignore Reade Seligmann's ATM receipts in order to find the Duke Lacrosse Three guilty? How many real courts would use an entertainment tabloid to collectively punish innocent men for the crime against Social Justice of belonging to a fraternity? Campus kangaroo courts have not so much set the bar low as dropped it to the ground. The toxic environment of Social Justice destroys any possibility of real justice -- except in a real court where the rules of real justice apply.

Posted by: Piltdown Ghost | Sep 22, 2015 6:34:26 PM

And David, I absolutely agree with you. OCR has created a toxic environment, the kind that would have killed off all the dinosaurs in the blink of an eye.

Posted by: Tamara Lave | Sep 22, 2015 11:33:48 AM

Jack, I absolutely agree with everything that you said. No one said that campuses were doing a good job, and most of those voting thought that courts should handle these type of cases. I just thought that Jed made an interesting point when he talked about what this debate could signal to DOE OCR. We humans have a habit of focusing on what we want to, and I hope that OCR doesn't let the Anderson/Schulhofer victory blind them to the very real problems with campus disciplinary proceedings.

Posted by: Tamara Lave | Sep 22, 2015 11:32:09 AM

We should differentiate between whether, in theory, universities should handle these cases at all and whether in the current climate they should. By "current climate" I mean a combination of (a) the OCR's "Dear Colleague" letter demanding that accused students not have basic due process protections (e.g., no cross-examination of accuser permitted, sexual past of accused NEVER allowed to be raised, no matter how relevant); (b) the OCR demanding that colleges reopen previous investigations of students previously found "innocent," sending the message that the OCR will only accept one verdict, on pain of threatening federal funding; (c) the fact that at some universities, the process has been turned over to ideologues who are not terribly interested in fair adjudication; and (d) universities applying blatantly discriminatory standards, such as acknowledging that if two intoxicated students have sex, only the man's actions are potentially subject to punishment. I think universities do have some role to play in this context, but the OCR has created such a toxic environment it's hard to see how they can currently play this role fairly.

Posted by: David Bernstein | Sep 19, 2015 1:43:18 PM

"If this is so, one wonders what makes the character or ability of professors and administrators so much higher that better results are likely in the academy. "

Well, they certainly have less power. They can expel, but not imprison.
Furthermore, they are subject to civil law; prosecutors and courts are immune to civil, and indeed criminal law for their official conduct.

Posted by: Barry | Sep 19, 2015 6:55:08 AM


As I understood them, none of the participants claimed that universities, as a group, are now doing a good and fair job of investigation and adjudication. And while Dean Anderson and Professor Schulhofer won the debate in the sense that they changed the most minds, both the in person and on line voting strongly favored the idea that courts, not campuses, should be the primary place of adjudication.


Posted by: Jack | Sep 18, 2015 11:10:01 AM

Thanks for posting the debate, Jack. I just watched it and really enjoyed it. I do hope that Stephen and Michelle's victory doesn't send a message that universities are doing a good job handling these cases.

Posted by: Tamara Lave | Sep 17, 2015 10:47:53 PM

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