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Classrooms, Courts or Neither?

February 12, 2014

CHARLOTTESVILLE, Va. -- Since the U.S. Education Department's Office for Civil Rights affirmed in its 2011 "Dear Colleague" letter that colleges should use a lower standard of evidence than criminal courts when adjudicating sexual assault complaints, many civil liberties advocates, lawyers and even politicians have accused the federal government of trampling students' right to due process. Campus officials, for the most part, have stressed that adjudication is an educational experience, where students are found "responsible" rather than "guilty," so their processes should be different from the criminal justice system's.

But during a two-day "dialogue" about sexual misconduct and college students here at the University of Virginia, it was clear that discontent over OCR's decree -- not to mention the question of whether colleges should even be adjudicating these cases in the first place -- is alive and well within academe.

The question of whether colleges should hear sexual assault cases -- in "kangaroo courts," as critics often call them -- is largely moot, because they are required by federal law to do so.

"We're certainly amateurs if the expectation is that we're supposed to be courts," Amherst College President Carolyn (Biddy) Martin said Monday during a panel featuring six college presidents whose campuses have been affected by high-profile allegations. "We ought not to be amateurs when it comes to education, and to a set of policies, processes and practices that can fairly assess responsibility for a range of things."

Besides, Martin said, "We want our campuses to be safe -- so we should deal with them."

But some of the more than 200 attendees, including students, prosecutors and student affairs staff, disagreed on that point, and others.

Linda Fairstein, a senior analyst at K2 Intelligence who consults with campuses on sexual violence issues, said in an interview Monday that felony-level cases in which a criminal act clearly took place "should only be handled in the criminal justice system."

Yet, she acknowledged, it's not that simple: sometimes a prosecutor won't take a case because it is unlikely to hold up in court. Part of the reason Title IX requires colleges to adjudicate cases using a "preponderance of evidence" standard, or 50.1 percent certainty, rather than "beyond a reasonable doubt," is because criminal courts historically have failed to deal with the range of cases that occurred on campuses.

"If there's no other forum," Fairstein said, "now it's a matter of getting it right."

In a Tuesday panel devoted to the adjudication conundrum, Fairstein and Gina Smith, a partner at Pepper Hamilton Law Firm who consults with campuses on how best to address sexual assault and comply with federal laws, said that's a balancing act.

Smith calls for a "mind, body and spirit" approach: look to federal guidance to frame policies, then account for the unique dynamics that factor in (for example, the fact that delays in reporting rape are common because of lack of institutional support), and consider your values and how you want to serve your community.

But for some in attendance, including Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth College, campus policies aren't going far enough to protect students.

"Why could we not expel a student based on an allegation?" Childress asked at the panel, before noting that while 2 to 8 percent of accusations are unfounded (but not necessarily intentionally false), 90 to 95 percent are unreported, committed by repeat offenders, and intentional. "It seems to me that we value fair and equitable processes more than we value the safety of our students. And higher education is not a right. Safety is a right. Higher education is a privilege."

"If we know that a person is reasonably a threat to our community," Childress said, "why are we not removing them and protecting the safety of our students?"

But the panelists quickly raised objections.

"I think the ability of our communities to rely on the processes on both sides of the equation is inextricably connected to a fair, equitable process that is thorough and based on evidence, not just conjecture, speculation and rumor," Smith said. "We cannot in individual cases just punt to statistics."

Colleges also don't want to invite a lawsuit -- from either accusers or the accused.

On Monday, University of North Carolina at Chapel Hill President Carol Folt acknowledged that "the Department of Education wouldn't have needed the Dear Colleague letter if we were doing this well."

But Frank, a third-year law student at Virginia, suggested administrators should be pushing back.

"You seem to be dealing with federal regulators who are obsessed with doing away with due process," he said. "Are the procedures you're setting up things that would be OK in court, and if not, why are students entitled" to different treatment, such as a lower burden of proof? "I think there are lots of problems on that front."

 

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