Law Review: Campus sex-assault trials bypass rights to pass judgment

Justin Dillon, former federal prosecutor and now a white collar defense lawyer, knows all too well the ways campus sexual abuse investigations can go wrong.

His litany of bizarrely skewed hearings is fraught with the potential for harm and tragic outcomes.

The college student brought up on charges of giving his girlfriend an unwanted kiss, more than a year after the relationship ended; an alleged rape victim who said friends had information the accused had raped others, but then declined to identify the friends; the hearing panel, composed of a librarian, a student dance major, and a professor of romance languages, whose job was to decide whether a sexual assault had occurred.

"It feels oftentimes that every new case I get is more absurd than the last. Sometimes you get people who are not old enough to drink, but are old enough to decide whether someone is a rapist," says the Harvard-trained lawyer, based in Washington.

Due process is a venerated constitutional right, but apparently not on many U.S. college campuses. For nearly four years, the Office for Civil Rights at the federal Department of Education has been bluntly threatening colleges and universities with the loss of hundreds of millions of dollars in federal funding unless they crack down on what the feds say is a wave of sexual violence. No matter that the data on this problem are in dispute.

The latest institution to fall victim is the University of Pennsylvania. Under pressure from the OCR, Penn has adopted a policy for sexual-abuse complaints that bars accused persons from cross-examining their accusers, a fundamental due-process right in criminal trials. Campus sex-assault investigations are not criminal probes, of course, but the information they generate can easily make its way to law enforcement.

Lawyers for the accused, moreover, may not make statements in defense of their clients, and the hearing panel is composed of employees of the university, itself under pressure to crack down on sexual violence.

Penn's new policy at least requires that three faculty members serve on its hearing panels. But there is no one outside this self-contained system to make independent judgments about the facts. Complaints about the process are coming not only from the accused and their lawyers. Nearly one-third of the Penn law faculty released a letter criticizing Penn for its policy, saying it undermines traditional safeguards for accused persons.

Penn declined to say whether pressure from OCR and the potential loss of federal funding figured into adoption of its new procedures. University spokesman Ron Ozio maintained that the procedures are fair.

Sexual assault is, of course, a hideous crime, and there is reason to believe that at some colleges, the problem has been swept under the rug for years. But the denial of fundamental rights to people accused of it breaches important traditions and has caused untold suffering. Dillon says clients - and they are always young men - can expect to spend tens of thousands of dollars to prove their innocence in a proceeding that is stacked against them. Sometimes there is a finding in their favor, but not before their finances - or their parents' - have been wrecked.

When things don't go well, Dillon says, the consequences are even more catastrophic. One client was forced to leave a top university in his last semester and finish his studies abroad. He had planned to attend a top medical school in the United States, but now will have great difficulty realizing that dream, Dillon said.

"The really competitive schools are just looking for a reason to say no," Dillon said. "There is going to be a whole generation of young men mowed down by this system."

The push to crack down on campus sex assaults began in earnest in April 2011 when the OCR issued a "dear colleague" letter pressuring colleges and universities to establish procedures that greatly increase the difficulty for the accused to vigorously test accusations against them. The Penn Law School faculty letter takes the OCR to task because its instructions were not adopted under normal rule-making procedures, which provide for comment by all the parties who might be affected.

"Congress has passed no statute requiring universities to reform their disciplinary procedures," the Penn letter noted. "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 guidelines require."

Meantime, OCR has intensified its probe of schools' policies for sexual-abuse complaints, citing the federal Title IX law barring gender discrimination. Since May 2014, the number of probes has nearly doubled, from 55 to 102. Among the schools targeted by OCR are the University of Delaware, Franklin and Marshall College, Allegheny College, Swarthmore College, Pennsylvania State University, and Temple University.

The process might be more defensible if the consequences weren't so dire. "Most couples are not going to play 'gotcha,' " said Joseph Cohn of the Foundation for Individual Rights in Education, a Philadelphia-based group that advocates for free speech and due process rights on U.S. campuses. "But anyone who has spent time in divorce court knows how vicious people can be when things go south."

Cohn's point is simple; the potential for abuse in these cases is enormous. And that makes it all the more critical for universities to employ a credible system for passing judgment.