Due process is be­ing kicked off cam­pus

Cecil Whig - - OPINION - Ge­orge Will

— Academia’s de­scent into per­pet­ual hys­te­ria and in­cip­i­ent tyranny is partly fu­eled by the fiction that one in five col­lege stu­dents is sex­u­ally as­saulted and that cam­puses re­quire minute fed­eral su­per­vi­sion to cure this. En­cour­aged by the gov­ern­ment’s mis­use of dis­cred­ited so­cial science (one sur­vey sup­pos­edly prov­ing this one-in-five fiction), col­leges and uni­ver­si­ties are im­ple­ment­ing un­con­sti­tu­tional pro­ce­dures man­dated by the gov­ern­ment.

The 2006 Duke lacrosse rape case fit the nar­ra­tive about cam­puses per­me­ated by a “rape cul­ture.” Ex­cept there was no rape. In 2014, the Univer­sity of Vir­ginia was con­vulsed by a mag­a­zine’s lurid re­port of a rape that but­tressed the nar­ra­tive that fra­ter­ni­ties fo­ment the sex­ual pre­da­tion sup­pos­edly pan­demic in “male su­prem­a­cist” Amer­ica. Ex­cept there was no rape. Now, Colorado State Univer­sity-Pue­blo has pun­ished the sup­posed rapist of a woman who says she was not raped.

Grant Neal, a CSU Pue­blo pre-med ma­jor and ath­lete, be­gan a re­la­tion­ship with Jane Doe (as iden­ti­fied in Neal’s law­suit), although she, as a stu­dent in the Ath­letic Train­ing Pro­gram, was not sup­posed to frat­er­nize with ath­letes. Jane Doe texted an in­vi­ta­tion to Neal to come to her apart­ment. The fol­low­ing is from Neal’s com­plaint against CSU Pue­blo:

“As the in­ti­macy pro­gressed, know­ing that they both wanted to en­gage in sex­ual in­ter­course, Jane Doe ad­vised Plain­tiff that she was not on birth con­trol. Ac­cord­ingly, Plain­tiff asked if he should put on a con­dom. Jane Doe clearly and un­equiv­o­cally re­sponded ‘yes.’ ... They pro­ceeded to en­gage in con­sen­sual sex­ual in­ter­course, dur­ing which Jane Doe ... demon­strated her en­joy­ment both ver­bally and non-ver­bally.”

The next day, one of Jane Doe’s class­mates, who nei­ther wit­nessed nor was told of any as­sault, no­ticed a hickey on the woman’s neck. As­sum­ing an as­sault must have hap­pened, the class­mate told school of­fi­cials that an as­sault had oc­curred. Jane Doe told school of­fi­cials the sex was con­sen­sual: “I’m fine and I wasn’t raped.” Neal’s law­suit says she told an ad­min­is­tra­tor: “Our sto­ries are the same and he’s a good guy. He’s not a rapist, he’s not a crim­i­nal, it’s not even worth any of this hoopla!” Neal recorded on his cell­phone Jane Doe say­ing that noth­ing im­proper had tran­spired, and soon the two again had in­ter­course.

Un­de­terred, CSU Pue­blo mixed hearsay ev­i­dence with mul­ti­ple due process vi­o­la­tions, thereby ru­in­ing a young man’s present (he has been sus­pended from the school for as


long as Jane Doe is there) and blight­ing his fu­ture (his prospects for ad­mis­sion to an­other school are bleak).

Ti­tle IX of the Ed­u­ca­tion Amend­ments en­acted in 1972 merely says no per­son at an in­sti­tu­tion re­ceiv­ing fed­eral funds shall be sub­jected to dis­crim­i­na­tion on the ba­sis of sex. From this the gov­ern­ment has con­cocted a right to mi­cro­man­age schools’ dis­ci­plinary pro­ce­dures, mandating ob­vi­ous vi­o­la­tions of due process.

In 2011, the Ed­u­ca­tion Depart­ment’s civil rights of­fice sent “dear col­league” let­ters to schools di­rect­ing them to convict ac­cused per­sons on a mere “pre­pon­der­ance” of ev­i­dence rather than “clear and con­vinc­ing” ev­i­dence. Schools were in­structed to not al­low ac­cused stu­dents to cross-ex­am­ine their ac­cusers, but to al­low ac­cusers to ap­peal not-guilty ver­dicts, a form of dou­ble jeop­ardy.

Although a “dear col­league” let­ter is sup­pos­edly a mere “guid­ance doc­u­ment,” it em­ploys the word “must” in ef­fec­tively mandating poli­cies. While pur­port­ing to just “in­ter­pret” Ti­tle IX, these let­ters shred con­sti­tu­tional guar­an­tees. And the let­ters evade the le­gal re­quire­ment that such sig­nif­i­cant rule­mak­ing must be sub­ject to com­ment hear­ings open to a prop­erly no­ti­fied pub­lic. Even were CSU Pue­blo in­clined to re­sist such dic­tates — aca­demic ad­min­is­tra­tors nowa­days are fre­quently supine when chal­lenged — it would risk a costly in­ves­ti­ga­tion and the po­ten­tial loss of the 11 per­cent of its bud­get that comes from Washington.

The Chron­i­cle of Higher Ed­u­ca­tion says the case raises this “in­trigu­ing” ques­tion: “What re­spon­si­bil­ity does a col­lege have to move ahead with a third-party com­plaint if the sup­posed vic­tim says she con­sented?” This ques­tion, which in a calmer time would have a self­evi­dent an­swer, will be ex­plored in Neal’s law­suit. It should re­veal what the school thought of Jane Doe’s state­ment ex­cul­pat­ing Neal, who says a school of­fi­cial “brushed off” the record­ing and said that Jane Doe said what she said “just be­cause she was scared of you.” Neal’s lawyer says he sus­pects that Jane Doe might now be in­ti­mat­ing some­thing “in­ap­pro­pri­ate” and is per­haps scared of los­ing her place in the Ath­letic Train­ing Pro­gram.

CSU Pue­blo should be scared of join­ing those schools that have lost law­suits filed by stu­dents de­nied due process. Such suits are re­me­dial ed­u­ca­tion for ed­u­ca­tors ig­no­rant of con­sti­tu­tional guar­an­tees.

Ge­orge Will is a syn­di­cated colum­nist. Con­tact him at ge­orgewill@ wash­post.com.

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