D.C. vs. campus due process: the consequences

by Walter Olson on April 17, 2013

“Unsubstantiated accusations against my son by a former girlfriend landed him before a nightmarish college tribunal.” Washington has recently made things worse, through Department of Education regulations that force colleges to jettison protections for the accused such as requirements that misdeeds be proved through at least “clear and convincing” evidence. [Judith Grossman, WSJ; earlier here, here, here, here, here, here, here, etc.] More: Scott Greenfield.

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1 Max Kennerly 04.17.13 at 7:53 am

“Nightmarish tribunal” = a two-hour informal hearing that exonerated him completely.

Oh, the horror.

2 Ron Miller 04.17.13 at 10:20 am

Okay, so some school board found there was not enough evidence to prove her son is a rapist.

I mean I glad she got some links out of it but, as a parent, is it really worth it to write this kind of article about your kid? Assuming the school’s ruling was a good one, it means there is somewhere between a zero and 49% chance he is a rapist. Even assuming the passionate belief of his innocence which very well may be correct, I can’t see putting that information out there.

(Max, maybe not a nightmarish tribunal but my gosh if you really were innocent, the whole ordeal would be pretty darn “nightmarish”, right?)

3 Hugo S. Cunningham 04.17.13 at 11:33 am

I am receptive to arguments that the “preponderance of evidence” standard (aka “hearing officer’s prejudice” standard) is inadequate for quasi-criminal charges.

But this article is incomplete. Supposedly the accused’s dossier of E-mails and contact with the accuser was “irrelevant”? But someone apparently did find the dossier relevant, because the defendant was ultimately cleared. Who cleared him? Did the maligned board get it right, despite what sounded like a harrowing 2-hour inquisition? Or did credible lawsuit threats against college administrators further up the food chain induce them to overrule a kangaroo-court conviction? Or did higher-ups intervene after the 2-hour hearing, but before any decision by the hearing board was published?

I tried to see if some of the comments on the WSJ article answered these questions, but 508 comments (and still growing) are too many to wade through.

4 Ron Miller 04.17.13 at 12:30 pm

Hugo, I think it is hard to write a balanced article that properly informs when you are writing about your own kid.

5 Black Death 04.17.13 at 1:37 pm

Hugo, your questions were occurring to me as I read the article. It seems that conditions in these cases have gotten worse, not better, since the Duke Lacrosse Hoax, at least on some campuses. Clearly this was an NKVD-style court, with secret testimony, little due process and selective review of the shaky evidence. It seems that a conviction was almost predetermined. I wonder if what got the defendant off was the realization by the Beria-type judges that his Mom was an attorney who was ready, willing and able to drag the whole Star Chamber before a real court of law. I guess we’ll never know.

6 gitarcarver 04.17.13 at 6:38 pm

Hugo,

Did the maligned board get it right, despite what sounded like a harrowing 2-hour inquisition?

I think the answer to that depends on one’s definition of “it.”

Did they get the result right? Maybe.

Do they have the process right? Absolutely not.

In many ways I think the article was not focused on the outcome, but the process. It is the process that I believe should be addressed as there are some terrible inequities in the current system. This is not the first time Overlawyered has covered this type of tribunal in colleges, but it is always been in the abstract of what may happen to someone. It is hard not to read a mother’s recounting of what happened to her son and put yourself in the place of a mother or father or the accused.

No one wants rapists or those who sexually assault another to go free.

No one wants the lives of innocent men and women falsely accused to go through this system because even actual tribunal will haunt them for the rest of their lives.

7 Robert 04.18.13 at 12:16 am

There’s absolutely no disincentive to making false claims of “abuse” or “rape.” Your name is even kept secret. You have nothing to lose by doing it.

8 Bill Poser 04.18.13 at 2:57 am

Anyone who thinks that there is not a real problem with college and university kangaroo courts should have a look at the FIRE blog The Torch. A further question arises: if there is credible evidence of sexual assault, why are these cases being handled by colleges at all, rather than being brought to the criminal courts? It is hard to avoid the inference that it is because the cases are so weak.

9 Hugo S. Cunningham 04.18.13 at 10:35 am

@Bill Poser–

I can see room for a charge of “misdemeanor sexual misconduct” for behavior that should be discouraged (eg taking liberties with a woman who is not one’s fiancee), but which should not bear the life-wrecking consequences of felony rape. Would a college be a better place to resolve such charges, or a civil court? In either case, the accuser should be required to identify herself and face cross-examination. A proper hearing might find *both* parties at fault in different ways, or maybe set both of them free with a warning.

10 marco73 04.18.13 at 3:51 pm

And there continues to be such wonderment and hand wringing about how there are fewer and fewer men on campus.
What responsible parent in their right mind would send their young son to a college campus today?
On-line education, here we come.

11 HH 04.19.13 at 1:55 am

As I posted elsewhere, I feel for the kid and what he had to endure.

As for the mom, I’ll feel sorry for her as soon as I see the public statements she made defending the Duke lacrosse team.

Which are, of course, non-existent.

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