For several years we have been covering the near elimination of due process rights for men accused of sexual misconduct on campuses.
Universities, compelled by a directive from the Obama Department of Education under threat of loss of federal funding, have combined with toxic radical feminist “rape culture” warriors to create tribunals in which men are presumed guilty in what amount to Kangaroo courts for men on campus.
These campus tribunals have turned our traditional notions of justice around. While we used to hold to a standard that better 10 gulity men go free than 1 innocent man be convicted, now it’s Better 10 Innocent Men Suffer, Than 1 Guilty Man Escape.
Prof. KC Johnson of Brooklyn College, who relentlessly documented the injustices in the Duke Lacrosse case, wrote a post recently highlighting a Cornell 2013-2014 Judicial Codes Counselor Report (full embed at bottom of post).
The report reviews cases handled by the JCC brought during that academic year at Cornell University, where I teach, and highlights many of the due process problems. The Report also includes “some observations made during Academic Year2014-2015.” This would not be a complete universe of cases, just those handled by JCC, staffed by law students who provide legal assistance to other students.
The main conclusion of the Report is that Cornell’s procedures were fundamentally unfair to the accused:
“Overall, Cornell’s procedures unfairly disadvantage respondents. The trouble begins with the federally required preponderance standard that schools must use to determine whether Title IX misconduct occurred. In complaints against students, Cornell’s choice to employ a single investigator model-in which a JA investigator serves as the functional equivalent of detective, prosecutor, and judge, all in one – means that recommendations are the result of unilateral inquiry by an arguably untrained administrator lacking critical subject-matter expertise. Although final decisions are officially rendered by three-person Review Panels, Panels never experience direct contact with the parties or witnesses and receive only the information the investigator provides. Cornell also unnecessarily eradicated important rights of the accused, far exceeding articulated federal recommendations.” [pg. 2]
Prof. Johnson goes into much more detail, Cornell’s Year of Sexual Assault Cases:
One of the three due process lawsuits against Cornell, however, has brought to light a more remarkable document. Prepared by Amanda Minikus, Cornell’s Judicial Codes Counselor, the document reviewed all sexual assault cases at Cornell during the 2013-2014 academic year….
Minikus’ key thesis: “In its efforts to swiftly revise its procedures and crack down on sexual misconduct, Cornell has implemented policy far beyond what is necessary to comply with OCR’s guidance and created a process fraught with inequities.”
For instance, despite silence on the issue from the Office for Civil Rights, accused students at Cornell are advised they have no right to remain silent. The faculty panel that pronounces final judgment hears only from the investigator, not the accused student. The accused student can have a lawyer, but the lawyer can’t actively participate in the disciplinary process. The accused student or his representative can’t cross-examine the accuser, even indirectly. The accused student or his representative has no right to the evidence gathered by the single investigator—on grounds that this constitutes “work product.” (After complaints, Cornell agreed to provide an “edited” version of this material.)
Johnson goes on to paraphrase some of the specific findings.
Minikus’s other main points:
Disparity between treatment of students and of faculty. The report notes that Cornell seems willing to protect the due process rights of faculty accused of sexual misconduct, but not students—a “troubling disparity.” Through the 2013-4 academic year, faculty accused of sexual misconduct were adjudicated by the clear and convincing standard. They had access to all exculpatory evidence. They had a right to remain silent. They had a right to be represented by a lawyer throughout the process. They had a right to a full hearing. They had a right to cross-examine all witnesses, including their accuser. Students had none of those rights. Though Minikus was describing the 2013-4 procedures, the disparity remains.
Breadth of what Cornell considers sexual misconduct. For instance, one 2013-2014 case featured a female student who claimed that ten pairs of undergarments were missing, and therefore had been stolen from her room. She informed the Cornell single investigator-adjudicator that she suspected a male student with whom she’d had negative interactions had committed the crime. She had no evidence that he had done so; indeed, it appears she had no evidence that her undergarments had been stolen at all. But Cornell found the male student guilty of sexual misconduct after the single investigator-adjudicator found the accuser’s suspicions more credible than the suspected student’s denials, even though the university investigation had uncovered no evidence that the accused student had done anything wrong. That finding—which doubtless will be interpreted by future employers as something equivalent to sexual assault—will remain on his transcript for life.
Gender. In all eight sexual assault cases during the 2013-2014 year, the accused student was male. After the sole male staffer was reassigned for unspecified reasons, all investigator-adjudicators were women, overseen by the Judicial Administrator, who also was a woman. The report noted the “troubling” dynamic of all accused students being male and all investigators being female.
Inconsistent procedures. Minikus detected occasions of seeming bias in Cornell’s approach—twice, polygraph examinations indicating accused student’s truthfulness were deemed inadmissible, on grounds that polygraph results are inadmissible in a criminal proceeding. “Note,” the JCC archly observed, “that investigators’ sudden reliance on the evidentiary standards to the criminal courts stands in contradistinction to their ordinary, emphatic insistence that [the Cornell policy] is an ‘educational’ process with relaxed evidentiary standards and without penal goals.”
Training. Cornell’s Title IX staff receive training from Markel Consulting, whose firm’s website states that his career “has been dedicated to pursuing justice for victims of crime.” A JCC associate attended the training (information for which is not public on the websites of either Markel or Cornell). The associate found that “the training focused primarily on how a school should proceed after a sexual assault took place. In short, the training assumed a sexual assault occurred.” This type of training, the JCC concluded, poorly served Cornell, since “beginning such training with the assumption that every allegation is valid does not train investigators to impartially assess complaints.” The JCC asked Cornell to publicize the training that Title IX officers received; Cornell so far hasn’t accepted that recommendation.
The Report is below. Much if not most of it deals with non-sexual harassment campus offenses.Here are two additional findings that jumped out at me:
“Clarifying guidance for the imposition of temporary suspension is a primary goal of the JCC Office. Presently, temporary suspension occurs at the whim of single administrator, whose initial decision is not subject to formal review. The JCC believes that the JA’s use of this measure is often haphazard and premature. Further, inconsistency in its application is inevitable due to. variable published standards for its use. As it appears in Cornell’s sexual assault policy, temporary suspension may be imposed according to a lower standard than in the Code. This fact could encourage administrative policy-shopping where the JA decides how to characterize misconduct and may also desire greater discretion to use interim measures like temporary suspension. Also, these variable standards can result in ridiculous outcomes. For example, since a wide range of misconduct may be addressed under Cornell’s sexual harassment policy, its looser standard could permit suspension in cases where alleged behavior is less violent or threatening than other conduct of a non-sexual nature requiring application of the Code.” [p. 2-3]
The report also highlighted one absurd case:
“This case is an excel lent example of how the preponderance standard results in arbitrary decisions. The complainant alleged lhat approximately ten undergarments were missing from her room. She suspected that someone stole them. There was no evidence whatsoever to place the respondent (or anyone else for that matter) at the scene of the theft. The investigator based her finding of guilt entirely on the perceived credibility of the parties. The investigator determined that the complainant was the most credible. Because she believed, based on her experience with the respondent, that he might have a motive to steal them and was unable to identify any other possible suspects, the respondent was found guilty. What is curious about this particular case is that, after assessing the credibility of the parties according to an entirely subjective standard, the JA treated the intuition of the most credible party as evidence.” [pg 20, fn. 73]
I reached out to Cornell Media relations, Cornell’s Title IX office, and the JCC office, asking the following questions:
Do you have any comment in response to this post by Prof. KC Johnson? https://academicwonderland.com/2016/07/25/cornells-year-of-sexual-assault-cases/
Have procedures and safeguards changed with respect to either students or faculty accused of offenses since the 2013-2014 report? Are any changes planned?
Only Media Relations responded as of this writing, stating
I have no information I can offer you on this issue at this time. As soon as new information is available I will make sure it is shared with you.
I know that there is a process underway at Cornell to examine these procedures. Hopefully that process will come to fruition soon. In its vigor to protect female students, the Department of Education and campus administrators at many universities have created a hostile environment for innocent male students, leaving a trail of needlessly ruined lives and lawsuits.
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