Penn law professors join critics of university sexual assault policies

A group of professors from the University of Pennsylvania Law School have added their voices to the debate about how best to ensure fairness as universities strive to respond to sexual violence.

The open letter by 16 professors acknowledges that sexual assault is a serious concern, but criticizes revised procedures adopted by the university Feb. 1. It also lays blame on the US Department of Education’s Office for Civil Rights (OCR) for unduly pressuring universities to adopt practices they deem objectionable.

They are particularly concerned that the university does not permit an accused student’s lawyer or representative to cross-examine witnesses.

They also object to the procedure by which an investigative team looks into the complaint and makes a determination if someone is responsible for misconduct, before a hearing takes place. Because that report is provided to the hearing panel, they say, it would bias panel members.

Among their other concerns: Accused students may be put in a position to incriminate themselves in cases that could be criminally prosecuted.

“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,” the professors write.

Some supporters of such positions say the Penn letter signifies growing discontent with OCR’s interpretation and enforcement of Title IX, the federal law barring sex discrimination in education.

“More and more people are seeing that there are competing interests and values … that need to be brought into the discussion,” says Janet Halley, a Harvard Law professor who was among those who signed a similar letter in October objecting to revised policies at Harvard University.

Supporters of OCR’s approach, on the other hand, say the more robust scrutiny of how campuses handle sexual violence complaints is long overdue. Contrary to the notion that the pendulum has swung too far, they say, the revisions many campuses are making bring fairness into procedures that often operated with a bias in favor of the accused, leaving rape victims doubly devastated.

The attention given to these two letters exaggerates the level of discontent, says Fatima Goss Graves, vice president for education and employment at the National Women’s Law Center in Washington. “Some of the biggest complaints don’t match up to reality,” she says.

For instance, there have long been some vocal objectors to the idea that Title IX sexual misconduct cases should rely on the “preponderance of the evidence” standard, meaning  the adjudicators need to find that it is more likely than not that the misconduct took place. The Penn law professors raise this objection as well, saying the “clear and convincing standard” would be better.

But OCR is reasonable to require that standard, Ms. Graves says, because it has long been the standard in civil rights matters, and most universities have been doing it all along.

Far from OCR prompting a “sea change” as some critics have implied, “the universities that weren’t [using that standard] were outliers,” she says.

Both on that issue and on saying there should be a right for lawyers to cross-examine witnesses, the Penn letter suggests that a school should operate more like the criminal justice system in order to ensure fairness. But procedures designed to ensure civil rights on campus have vastly different goals, critics of the Penn letter say.

The criminal justice system is an adversarial one designed more to produce a winner than to get at the truth, says Wendy Murphy, an adjunct professor at New England School of Law. Universities shouldn’t be compelled to let lawyers cross-examine witnesses, she adds, because lawyers can serve to “obfuscate reality” and are often trying to “prevent accused students from getting in trouble for lying.”

Title IX, on the other hand, is about “ensuring equality and safety,” Ms. Murphy says. 

“There is no acknowledgment in this letter that this is a civil rights issue of constitutional magnitude that goes to the heart of having an academic environment where all rights are respected,” adds Murphy, who brought cases against Harvard and other universities that became influential in OCR’s issuing a landmark “Dear Colleague letter” in 2011 on these matters.

But accused students may find federal judges sympathetic if they bring a claim saying they should have been offered the right to cross-examine, says Hans Bader, a former US Department of Education lawyer who is concerned that OCR has been overreaching.

Federal judges in Philadelphia have ruled that cross-examination should have been allowed in various situations at state institutions that boil down to people’s credibility – and a private institution could be challenged if a government agency, such as OCR, pressured it to act in a way that violates a student’s rights, he says.

Both the University of Pennsylvania and the Department of Education defended their approaches in email responses to the Monitor’s inquiry about the Penn law professors’ letter:

University of Pennsylvania spokesman Stephen MacCarthy wrote, in part: “[W]e consulted broadly with members of our community, including the law school faculty, and closely reviewed federal regulations and guidance. We … provide a sensitive and effective process for those who file a complaint, while actively protecting the rights of the accused.”

Dorie Turner Nolt, press secretary at the US Department of Education, wrote, in part: “Sexual violence has no place in society and especially no place in our nation’s schools and on our nation’s college campuses. The guidance we have provided to states, school districts and institutions of higher education strikes a balance between protecting the rights of the accused and giving all students the opportunity to learn in a safe and healthy environment.”