In your “Open Letter”of last week, you set aside your own political disagreements to denigrate policies that could lead to safety and educational equality. By conflating the extensive procedural protections rightly afforded to criminal defendants with “fundamental fairness” in the context of a school disciplinary proceeding, your letter perpetuates the harmful myth that survivors of sexual violence should be disbelieved, silenced and denied non-criminal relief unless they seek and obtain criminal conviction of their assailant.
No, “due process of law is not window dressing,” and you have misstated the law of due process in the university setting. It is generally established that public universities owe students minimal due process rights, and private universities owe them none. While you critique the U.S. Department of Education Office of Civil Rights’ guidance that the evidentiary standard used should be a “preponderance of the evidence” standard instead of “clear and convincing” evidence, as a legal matter, private universities can discipline students with no process whatsoever. They must only adhere to the contract set forth by their own policies. Thus, the “Open Letter” must be seen for what it is: a disagreement with Title IX’s mandate that sexual assault survivors not be made to struggle through grievance procedures that specially insulate those accused of sexual assault. This policy, and the OCR’s guidance, was designed to fight the pernicious effects of sexism — including sexual harassment and assault — on our campus. Title IX, a civil rights law, mandates this policy for the purpose of ensuring that people are not denied the ability to pursue and enjoy their education on the basis of sex. The proceedings required are not criminal-light proceedings, despite your attempts to portray them as such. Although Penn’s data on discipline is sadly lacking, grievance proceedings are generally remarkable for the lack of consequences for those found to have committed a sexual assault. Few students found responsible for sexual assault in university adjudications are even expelled — between 13 percent and 30 percent by a recent count.
Furthermore, perhaps because you know full well that Penn students have no claim to due process in this setting, you failed to explore what your arguments mean in the context of actual due process at state universities. If you had, you would know that it is well established that due process allows state schools to expel students for any misconduct using an even lower evidentiary standard than that at issue here, that of “substantial evidence.” Why do you think it should be legally harder to expel someone for rape than for moving newspapers, or cheating or assaulting a police officer? The answer again is that your “fairness” standard has a basis — it’s just not in the law. And when 16 esteemed professors of law opine in a public forum, the general public will take your policy rhetoric as law, especially if it is cloaked in false appeals to the Constitution. Do you also think that people facing criminal rape charges should get special protections not afforded to other criminal defendants? Or is your concern only for Ivy League men accused of rape? One thing is certain: Your concern in this “Open Letter” is not for those of us who have been and will be sexually assaulted.
Your collective signatures should carry with them not just the gravitas of your well-earned reputations, but also the weight of sound legal theory and academic rigor. Unfortunately, you are correct that the “concerns about fundamental fairness” expressed in your open letter are “not academic or theoretical in nature.” Rather, they are anxieties born of uninformed and unexamined sexism. This attempt by sixteen learned law professors to — unwittingly, it seems — cover your sexist policy preferences with a patina of legal authority exemplifies the pervasive bias against women that Title IX was enacted to address.
EMILY TURNER is a third year law student at Penn Law. Her email address is firstname.lastname@example.org. She is a Toll Public Interest Scholar and a senior editor on the University of Pennsylvania Law Review.
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