“There can be no doubt that behind all the actions of this court of justice, that is to say in my case, behind my arrest and today’s interrogation, there is a great organization at work. An organization which not only employs corrupt warders, oafish Inspectors, and Examining Magistrates, but also has at its disposal a judicial hierarchy of high, indeed of the highest rank, with an indispensable and numerous retinue of servants, clerks, police, and other assistants.
And the significance of this great organization, gentlemen? It consists in this: that innocent persons are accused of guilt, and senseless proceedings are put in motion against them.”
– Franz Kafka, The Trial
Inside Higher Ed has an interesting article which sheds some light on the mindset, competence, and moral quality of administrators in campus sex-assault hearings. Here you will find a decent primer on the weasel-words administrators use to rationalize what would otherwise be called a horrible injustice.
As usual, I’ll provide an analysis with interspersed comments. Let’s begin:
Since the U.S. Education Department’s Office for Civil Rights [OCR] affirmed in its 2011 “Dear Colleague” letter that colleges should use a lower standard of evidence than criminal courts when adjudicating sexual assault complaints, many civil liberties advocates, lawyers and even politicians have accused the federal government of trampling students’ right to due process.
Stop by the Rights and Protections section under the Know the Issues>Issues tab in the above menu for more about these unjust policies, if you are unfamiliar with them.
Campus officials, for the most part, have stressed that adjudication is an educational experience, where students are found “responsible” rather than “guilty,” so their processes should be different from the criminal justice system’s.
It’s interesting that administrators compare what is little less than a bureaucratic lynching to an educational experience. Being wrongly labeled a “rapist” in front of one’s peers is not “educational,” unless you mean to say that it educates him in how incredibly unjust and anti-male these campus kangaroo courts have become.
This has interesting implications that should provoke criticism from both Feminists and men’s advocates. Administrators say they are not adjudicating criminal behavior, but just “misconduct.” Feminists online and elsewhere have taken this to mean that schools trivialize sexual assault – a felony offense – by framing it simply as “misconduct.” And there is, I think, something reasonable to this claim.
But this framing – of sexual assault as “misconduct” – also has interesting implications for due process. Campus administrative hearings are not criminal courts. They do not have anywhere near the level of due process and fair procedure that the legal system – which itself has been known to get it wrong on due process on far too many occasions (as the authors of Community of the Wrongly Accused have aptly demonstrated) – does.
As we just saw in the quote from Inside Higher Ed, administrators then make the excuse that they don’t have to provide due process and fair procedure because they are not adjudicating criminal behavior, but “misconduct.” This is despite the fact that they know full well that the wider community – including the students’ peers – will look upon those found “guilty” (which administrators downplay by instead calling it “finding a student in violation”) as rapists.
Unfortunately, many students will naively assume that since the university is full of responsible, intelligent people whose livelihood is predicated upon critical thinking and the pursuit of truth rather than fashionable politics (I too used to be among them, but have learned better since) that the university’s pronouncements are more credible than they really are.
But during a two-day “dialogue” about sexual misconduct and college students here at the University of Virginia, it was clear that discontent over OCR’s decree — not to mention the question of whether colleges should even be adjudicating these cases in the first place — is alive and well within academe.
Indeed, contrary to what many men’s advocates may assume, discontent (though not dissent) with the April 4 letter is alive and well in academia. A while back, Inside Higher Ed even ran a very illuminating article by a frustrated and angry dean of students who said:
A few years ago, the Center for Public Integrity published a report that excoriated that excoriated colleges and universities for their handling of sexual assault cases. It was an absolutely indicting report… unless the reader was, like I am, a student affairs professional who could easily imagine being the one publicly criticized in the report.
Yes, I could imagine it. Not that I believed at that point (or since) that I had mismanaged a sexual assault case, but because the ones I had managed were enormously complex, full of truths, lies, reversals, angry parents, hungry lawyers and empowered supporters.
This administrator expressed the same discontent that Title IX Coordinator Michele Vieira did in my interview with her: administrators feel they are being forced by the Department of Education to cast judgment upon students when, oftentimes, they do not have enough information regarding the nature of the alleged incident to be making such judgment calls.
The reality, of course, is that administrators are amateurs when it comes to dealing with these kinds of accusations. They have neither the investigative nor prosecutorial power of the criminal justice system, and they know it.
Of course, scorched-earth Feminists, as we have seen, interpret this skepticism and desire for a more nuanced approach as “defending rapists.” In their world everything is black and white, and there are only two types of people: rape victims and rapists. And women never lie – except, of course, when they later retract a rape accusation and say it didn’t happen. Which, Feminists will then say, only happens because The Patriarchy™ made them do it.
Thankfully, their narrow-mindedness and misandry is losing popularity in the world, thanks to men’s advocates and everyday reasonable people. Returning again to the recent IHE article, we find this statement by a higher ed administrator:
“We’re certainly amateurs if the expectation is that we’re supposed to be courts,” Amherst College President Carolyn (Biddy) Martin said Monday during a panel featuring six college presidents. “We ought not to be amateurs when it comes to education, and to a set of policies, processes and practices that can fairly assess responsibility for a range of things.”
Despite acknowledging administrators’ incredible limitations of accurately finding guilt (which is exactly what they are doing, no matter how much they try to weasel out of it by reframing it as “finding students in violation of the code of conduct”), Martin supports the practice of schools adjudicating felony accusations and possibly coming to entirely different conclusions than police and courts, saying “We want our campuses to be safe – so we should deal with them.”
The article starts to get worse – much worse – from there:
Part of the reason Title IX requires colleges to adjudicate cases using a “preponderance of evidence” standard, or 50.1 percent certainty, rather than “beyond a reasonable doubt,” is because criminal courts historically have failed to deal with the range of cases that occurred on campuses.
Read between the lines of that statement. It’s essentially saying that many people have adopted the attitude of “if we can’t wreck the lives of young men accused of rape by going through the criminal justice system where there actually are such things as evidentiary standards, we’ll create our own kangaroo courts in another mainstream institution with a laughably low degree of due process and fair procedure and wreck them there.”
This mindset is vindictive at the core. Kangaroo courts should never be something that someone “resorts to.” But that is exactly what is happening, and it is primarily due to the scorched-earth mentality among those who claim to be advocating for “survivors” when what they are really doing is advocating that all accusations – regardless as to whether they are truths or lies – should be resolved by wrecking someone’s life.
It gets worse:
For some in attendance, including Amanda Childress, Sexual Assault Awareness Program coordinator at Dartmouth College, campus policies aren’t going far enough to protect students. “Why could we not expel a student based on an allegation?” Childress asked at the panel
Not suspending, but expelling a student – sending him away forever – based on nothing more than an allegation? I hope I’m reading that wrong and she really means “after an administrative hearing finds him ‘in violation.'” In reality, however, it’s not like there is that much difference anyway given that the “standard” of evidence administrators employ is little more than the toss of a coin…before you factor in money and politics – the hidden rules that are not written down, and which tip the balance in favor of the accuser.
“It seems to me that we value fair and equitable processes more than we value the safety of our students. And higher education is not a right. Safety is a right. Higher education is a privilege.”
Fair and equitable procedure is safety. A bureaucracy set up to lynch students and give free passes to false accusers is not safe.
Also, higher education is not a “privilege” when you have paid for it. The university has a contractual obligation to treat its students fairly and equitably. And it should also have such an obligation under Title IX. Unfortunately, as we have seen, pretty much everyone who enforces or creates guidelines to enforce Title IX has a huge blindspot toward men and boys.
If higher education is indeed a privilege as Amanda Childress says, it appears to be a female one.