Penn Law Professors Blast University’s Sexual-Misconduct Policy

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Another Ivy League university is facing criticism from its own law professors over school procedures for handling sexual-assault complaints against students.

A group of 16 University of Pennsylvania Law School professors has a signed a letterdecrying the university’s new sexual-misconduct policy, which they say fails to protect the rights of the accused. The letter, which was made public Tuesday, comes on the heels of a similar protest by professors at Harvard Law School.

Among their concerns, the Penn professors say they’re troubled that accused Penn students are now barred from having a lawyer cross-examine witnesses against them.

The legal scholars also fault Penn’s administration for lowering the evidentiary standard of proof for deciding claims, changing it from “clear and convincing” to a “preponderance of evidence.” The latter is typically used in civil suits for monetary damages following a trial. A three-member panel of faculty members can hold a student responsible for alleged sexual misconduct — and impose sanctions including expulsion — with a 2-1 vote.

A spokesman for Penn’s administration defended the university’s policies.

“We developed a process that we believe to be fair and balanced, that will both provide a sensitive and effective process for those wishing to make a complaint, while actively protecting the rights of the accused,” Ronald Ozio, the Penn spokesman, told Law Blog.

He said the university consulted law school faculty about the policy before it was approved by university deans and trustees. It went into effect Feb. 1.

The letter, which was signed by about a third of of Penn law school’s tenured and tenure-track faculty, says the university’s policy concentrates too much power in the hands of a “Title IX” investigator employed by the school who conducts investigations and makes recommendations to hearing panels. The law school’s incoming dean,Theodore Ruger and his predecessor weren’t among those who signed the letter.

In guidance letters to universities, the U.S. Department of Education’s Office of Civil Rights has instructed schools to use the preponderance of evidence standard in making sexual-misconduct determinations.

Penn itself isn’t among the dozens of colleges identified by the agency as being under investigation or their handling of sexual abuse complaints.

The Penn professors say by pressuring schools to change their disciplinary procedures, the Obama administration has effectively created a new regulation under Title IX, which prohibits gender discrimination at schools receiving federal funds, without going through the usual rule-making process.

“Our concerns about fundamental fairness are not academic or theoretical in nature,” says the Penn letter, which was reported by the Philadelphia Inquirer. “There are documented cases of a rush to judgment on charges of sexual misconduct at universities, including the Duke Lacrosse case and the recent events at the University of Virginia.”

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