Like it or not, stu­dents ac­cused of as­sault have rights

The Detroit News - - Front Page - Ijacques@de­troit­news.com

Univer­sity ad­min­is­tra­tors who can’t bear the thought of heed­ing Ed­u­ca­tion Sec­re­tary Betsy DeVos on cam­pus sex­ual as­sault may be more swayed by a re­cent Ap­peals Court de­ci­sion. At least they should be. Late last month, DeVos of­fi­cially re­scinded the trou­ble­some Oba­maera guid­ance that stripped due process and fair­ness from cam­pus as­sault pro­ceed­ings, giv­ing ac­cused stu­dents lit­tle re­course to de­fend them­selves. The Obama ad­min­is­tra­tion used Ti­tle IX, the law pro­hibit­ing sex dis­crim­i­na­tion in schools, as its tool.

DeVos is now be­gin­ning to cre­ate a new frame­work, fol­low­ing a pe­riod of pub­lic com­ment. In the mean­time, she has en­cour­aged uni­ver­si­ties to re-eval­u­ate their stan­dards for de­ter­min­ing guilt and en­sure all stu­dents are given a fair hear­ing.

A few days af­ter that an­nounce­ment, the 6th U.S. Cir­cuit Court of Ap­peals is­sued an opin­ion that could have a wide im­pact on uni­ver­si­ties, and up­holds DeVos’ con­cerns. Michi­gan is di­rectly af­fected, since the state is in the court’s ju­ris­dic­tion. The case is a great ex­am­ple of why the sta­tus quo isn’t work­ing.

In 2015, two stu­dents (John Doe and Jane Roe in the court records) at the Univer­sity of Cincin­nati met through Tin­der and had sex at the male stu­dent’s apart­ment. He thought it was con­sen­sual. She didn’t and three weeks later she com­plained to the school’s Ti­tle IX of­fice.

The court stated there was no phys­i­cal ev­i­dence to sup­port ei­ther claim, mean­ing this was a he said/she said sce­nario.

The univer­sity held a dis­ci­plinary hear­ing “af­ter con­sid­er­able de­lay,” ac­cord­ing to the opin­ion. The ac­cuser didn’t even bother to show up to the hear­ing yet the univer­sity still found Doe re­spon­si­ble for sex­u­ally as­sault­ing Roe. Of­fi­cials sus­pended him for two years, re­duc­ing it to one year af­ter an ad­min­is­tra­tive ap­peal.

The plain­tiff sued the univer­sity, since he’d had no abil­ity to con­front his ac­cuser and was de­nied his due process rights.

“The Due Process Clause guar­an­tees fun­da­men­tal fair­ness to state univer­sity stu­dents fac- ing long-term ex­clu­sion from the ed­u­ca­tional process. ...De­fen­dants’ fail­ure to pro­vide any form of con­fronta­tion of the ac­cuser made the pro­ceed­ing against John Doe fun­da­men­tally un­fair,” the panel wrote in their de­ci­sion.

The court con­cluded, “while the pub­lic has a com­pet­ing in­ter­est in the en­force­ment of Ti­tle IX, that in­ter­est can never over­ride in­di­vid­ual con­sti­tu­tional rights.” That’s ex­actly what DeVos has ar­gued. David Nacht, a lawyer in Ann Ar­bor, has worked with many stu­dents at the Univer­sity of Michi­gan ac­cused of sex­ual mis­con­duct and he’s seen first hand the sys­tem’s un­fair­ness. I spoke with him two years ago about some of th­ese cases, and his con­cerns with how the in­ves­ti­ga­tions take place.

Nacht be­lieves the Ap­peals Court de­ci­sion might be as im­por­tant — if not more — than DeVos’ an­nounce­ment. He sees it as push­ing back against a grow­ing cul­tural em­pha­sis on vic­tims’ rights and the con­stant drum beat that rape and as­sault are ram­pant on col­lege cam­puses.

The fren­zied push to fight as­saults, along with threats from the Obama ad­min­is­tra­tion to strip fed­eral fund­ing if uni­ver­si­ties didn’t deal prop­erly with ac­cu­sa­tions, has fash­ioned a sys­tem that, in try­ing to pro­tect the rights of one group, de­nies the rights of oth­ers.

Many univer­sity of­fi­cials have ba­si­cally told DeVos to take a hike, and said they’d con­tinue with cur­rent poli­cies aligned with Obama’s di­rec­tive. Univer­sity of Michi­gan Pres­i­dent Mark Sch­lis­sel told The Detroit News editorial board last month that his “com­mit­ment is the same as it was be­fore.” But at least he can see both sides of this is­sue.

“The con­se­quences are ex­treme for both par­ties,” Sch­lis­sel says. “It’s ex­treme for the sur­vivors — imag­ine hav­ing to go to class with some­one who as­saulted you. And it can be life-al­ter­ing for the re­spon­dents, if there’s a find­ing against them and they are forced to leave school or take time off. That’s at least a stigma if not worse that stays with them for their whole lives.”

And those high stakes are ex­actly why due process mat­ters.

IN­GRID JAC­QUES

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