Following the lead of their colleagues at Harvard Law School, a sizable number of University of Pennsylvania Law School faculty have written an open letter decrying the university’s new procedures for sexual-assault investigations, made under pressure from the federal government.
The Inquirer reports that the letter was signed by nearly a third of the law school faculty – though not its newly appointed dean, Theodore Ruger – and that signers are calling Penn’s move a financial decision more than anything else:
“Sexual assault is indeed an important problem, but the federal government has dictated a set of policies and twisted universities’ arms into compromising some of the safeguards that we teach our students are essential to fairness,” said Stephanos Bibas, a professor of law and criminology and one of the authors of the letter. “There is a tremendous amount of money on the line. It is understandable that universities feel pressure to comply.”
The open letter is extraordinarily detailed, and opens thus:
We do not believe that providing justice for victims of sexual assault requires subordinating so many protections long deemed necessary to protect from injustice those accused of serious offenses. We also believe that, given the complexities of the problem, [the Office for Civil Rights’] process has sacrificed the basic safeguards of the lawmaking process and that those safeguards are critically necessary to formulate sound regulatory policy.
The faculty call on Penn to better protect students before incidents, especially curtailing “excessive” alcohol and drug use, and give students “clear rules” on sexual consent:
Ultimately, however, a student who denies the charges is entitled to a fair hearing before being subjected to serious, life-changing sanctions. These cases are likely to involve highly disputed facts, and the “he said/she said” conflict is often complicated by the effects of alcohol and drugs.
They call for “more serious cases” of alleged sexual assault to go through the criminal justice system, which should be “much more accessible to and supportive of sexual assault complainants.”
The signers are unsparing in their criticism of the federal government:
Congress has passed no statute requiring universities to reform their campus disciplinary procedures. OCR has not gone through the notice-and-comment rulemaking required to promulgate a new regulation. Instead, OCR has issued several guidance letters whose legal status is questionable. … In addition, OCR has used threats of investigation and loss of federal funding to intimidate universities into going further than even the guidance requires. …
Both the legislative process and notice-and-comment rulemaking are transparent, participatory processes that afford the opportunity for input from a diversity of viewpoints. That range of views is critical because this area implicates competing values, including privacy, safety, the functioning of the academic community, and the integrity of the educational process for both the victim and the accused, as well as the fundamental fairness of the disciplinary process. A formal lawmaking process would have required the federal government to deliberate, strike reasonable balances, and offer an explicit justification for its policy judgments.
They find particular fault with the new “Investigating Officer” system, which shuts out both sides from seeking evidence or questioning witnesses and is not required by OCR:
Cross-examination has long been considered as perhaps the most important procedure in reaching a fair and reliable determination of disputed facts. Rather than abolishing cross-examination, it would be much fairer to impose reasonable limits, including a ban on irrelevant questions regarding the sexual history and sexual orientation of the complainant; control over unfair, oppressive, or overbearing cross-examination; and even separation of the complainant and accused during the hearing.
The system encourages the hearing panel to defer to the “expert” investigator, the law faculty say:
Our legal system is based on checks and balances precisely because of the risks associated with concentrating so much power in the hands of a single investigator or Investigative Team. What is needed is a procedure that allows the accused student’s lawyer or representative to challenge the Investigative Team’s version of events, to ensure that the panel will hear all the evidence that is submitted by both sides and reach its own conclusions as to the veracity of witnesses and the responsibility of the accused student.
They also want unanimity to be required on the three-person hearing panel, since the school is using the “more likely than not” evidence standard, and the opportunity for the accused to protect himself “against self-incrimination in cases in which there may be a criminal prosecution.”
That last point is particularly important, because otherwise the accused “may be forced to the cruel choice of defending the University charges at the risk of compromising his rights in the criminal case.”
They close with a reminder of other discredited rape allegations and witch hunts at the University of Virginia and Duke University:
Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our peril. All too often, outrage at heinous crimes becomes a justification for shortcuts in our adjudicatory processes. These actions are unwise and contradict our principles.