A substantial portion of the Harvard Law School faculty has written a letter objecting to lack of due process in Harvard’s new sexual assault procedures:
Faculty members at other universities have similar concerns; some speak out and others do not.
A related question is whether facially neutral procedural rules and burdens of proof can, if slanted enough against an accused person, have a disproportionate impact on accused students who are racial minorities and foreigners. We will not know the answer to this question for sure until colleges and universities report data on case resolution under different burdens of proof and procedural rules (this assumes institutions don’t cover up a problem by manipulating the data, for example by inaccurately reporting the race or national origin of an accused).
There are, however, reasons to be concerned, including:
- Witnesses from a majority ethnic group – white Americans on most campuses -- may provide testimony affected by conscious or unconscious bias, for example resentment of sexual overtures toward another member of their group by minorities or foreigners.
- Witnesses, and the accuser, may be more likely to misinterpret communications and actions of minorities and foreign students than communications and actions of other students. Language differences can make this problem worse.
- In any mixed gathering of students, statistically there are likely to be more witnesses from the majority group than from an accused students’ minority group.
Also, in the current atmosphere – created in part by the federal government – faculty members may not advocate for an accused student in the process. Traditionally, accused students have gone to faculty members they know for support in student disciplinary cases ranging from plagiarism to under-age drinking and vandalism. In sexual assault cases however, faculty members may fear being accused themselves of engaging in a “cover up” and refuse to weigh in with fact finders on such matters as the character and veracity of the accused. If so, the accused student is left with a single faculty member, if there is one, who is willing to be designated as an official advisor for the student in the disciplinary process, assuming the procedural rules allow it. Other faculty members might avoid discussing the case – particularly in email but even verbally – for fear of ending up in the crosshairs of the University, the Department of Education or even the Department of Justice. This in turn could make accused students more dependent upon outside lawyers, disadvantaging those who cannot afford a lawyer. In the case of accused minority and foreign students, an intimidating atmosphere could discourage faculty members from doing a critical part of their job, which is to protect these students from any type of discrimination.
Sexual assault is a serious problem on many campuses and needs to be taken seriously. We should be aware, however, that as in the rape trial of the Scottsboro Boys in the 1930’s, facially neutral sexual assault laws can be applied in a discriminatory manner. Lowering burdens of proof and reducing the procedural rights of an accused person may be an invitation to such abuse.
It would be tragic for American colleges and universities to exacerbate one type of discrimination in order to fight another. We should be able to do both at the same time. Being more diligent in reporting sexual assault cases to law enforcement and allowing those cases to be handled by a justice system run by professional prosecutors and judges, is probably the best answer (arguably the most serious cases, such as those likely to result in expulsion of a student, should only be handled by law enforcement in the first instance). By contrast, procedurally sloppy administrative prosecution of students by untrained academic personnel, including other students, could have disastrous consequences.