UPenn law professors speak out against new campus sexual assault policy By Ashe Schow
Law professors at the University of Pennsylvania are not happy about the university's new sexual assault policies, which they say undermine due process.
Nearly one-third (16 out of 49 tenure or tenure-track professors) signed a letter to school administrators denouncing the new policy, which institutionalizes the low “preponderance of evidence” standard for sexual assault allegations and disallows cross-examination of the accuser.
“Due process of law is not window dressing; it is the distillation of centuries of experience, and we ignore the lessons of history at our own peril," the faculty members wrote. “All too often, outrage at heinous crimes becomes a justification for shortcuts in our adjudicatory processes. These actions are unwise and contradict our principles.”
The professors cite five reasons they disapprove of the new policies, including an ambiguous definition of consent, lack of due process in mostly “he said/she said” situations, the federal government’s involvement and penalties and of course the lack of due process.
The professors acknowledge that since university disciplinary hearings are not criminal courts, they “do not require all constitutional guarantees.” But the faculty members say the hearings do require fairness.
The new UPenn policy, unlike many universities across the country, does allow students to obtain legal counsel, although the lawyers cannot speak on their client’s behalf. The policy also prohibits cross-examination of accusers and their witnesses, one of the biggest biases against accused students.
The professors argue that threats from the federal government to curb funding if schools don’t adequately punish accused students provides quite an incentive for hearing panels to find students guilty. Recent findings from the Department of Education show an administrationmore concerned with looking tough on sexual assault than a fair hearing.
"Sexual assault is indeed an important problem, but the federal government has dictated a set of policies and twisted universities' arms into compromising some of the safeguards that we teach our students are essential to fairness," UPenn professor Stephanos Bibas, who signed the letter, told the Philadelphia Inquirer. “There is a tremendous amount of money on the line. It is understandable that universities feel pressure to comply."
Naturally, the university claims the new policy is “fair and balanced.”
"Penn developed the new process as a fair and balanced process to address the serious issue of sexual assault on campus and we believe the process responds appropriately to the federal government's regulations and guidance," Ron Ozio, a university spokesman, told the Inquirer.
UPenn is not the first school to receive pushback from its law professors. In October 2014, faculty members of Harvard Law wrote a lettercondemning the school's sexual assault policies and lack of due process.