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Campus Kangaroo Courts: Blame Colleges, Not Just the Federal Government

Schools were engaging in these practices long before anyone made them.

Serving on a panel that hears Title IX sexual-assault complaints on college campuses sounds like a full-time job. According to a recent story in the Chronicle of Higher Education, at the University of Wisconsin–Whitewater, students, faculty, and staff who volunteer “are trained in the Wisconsin system’s conduct code, which is written into state law. They also complete an annual course on sexual assault and sexual misconduct, developed by system lawyers. [They learn] about the definitions of sexual misconduct and related terms . . . the nuances of consent and on trauma-informed questioning.” If universities don’t train panelists according to rules set by the federal Department of Education, they could be accused of contributing to the very “hostile environment” they are meant to combat.

At large schools with a lot of faculty and administrators it may be easier to spare someone to serve in such a role — the University of Virginia has 50 people who have been trained to do so. But at smaller schools, things are harder. Amherst, Smith, Mount Holyoke, Hampshire, and UMass Amherst band together and loan each other administrators to serve on such panels. According to the Chronicle, one college couldn’t find anyone to serve, so it had to get its librarian to oversee hearings.

Schools may lament that this training is both time-consuming and costly, but they have only themselves to blame. Sure, the federal government imposes these requirements today, but it was colleges that started us down this road.

Disciplinary panels — including ones that involved students — were set up in the ’60s and ’70s to adjudicate violations of schools’ honor codes, such as plagiarism. But as university faculty and administration began to see their role as more expansive, these panels experienced “mission creep” and started hearing cases of actual crimes. In 1980, University of Virginia assistant dean of students Edward Golden looked into how colleges were handling these matters. Among the 58 institutions he surveyed, 36 percent did not allow cross-examination, 55 percent did not guarantee an impartial judge or jury, 60 percent did not guarantee students the right to confront their accusers, and 91 percent did not make witnesses testify. In 1999, with their book Shadow University, Harvey Silverglate and Alan Kors documented how colleges across the country had created disciplinary systems that violated students’ due-process rights.

Decades later, schools are paying lip service to the idea of neutrality. At the University of Virginia, for instance, panelists are trained in “how to determine credibility; how to evaluate evidence and weigh it in an impartial manner; how to conduct prompt, fair, impartial, and thorough investigations and hearings that ensure due process, protect community and individual safety, and promote accountability [and] confidentiality.” But this is absurd: We have an extensive legal system that is trained to deal with exactly such matters. There are police who are trained to “conduct prompt, fair, impartial, and thorough investigations,” judges who understand “how to evaluate evidence and weigh it in an impartial manner.” There are lawyers who spend years studying how to “promote accountability” and assure “confidentiality.” It is true that we do not give jurors in courtrooms “training” in these matters before deciding guilt or innocence, but the campus panelists are acting like judges, too, in these instances.

The results of these training efforts have been predictable. As Stuart Taylor and K. C. Johnson, the authors of The Campus Rape Frenzy, wrote last year, “Since nothing in the experience of most academics prepares them to competently investigate an offense that’s a felony in all 50 states, it makes sense to train those who are assigned to investigate campus sexual-assault allegations. But the ideological regimes used on many campuses are designed more to stack the deck against accused students than to ensure a fair inquiry.”

Indeed, the basic instructions we give to juries are superior to the “training” that is being offered to these students and professors. For instance, rather than being told that a suspect is innocent until proven guilty, some of these panelists are presented with documents suggesting the accused are probably guilty. Panelists at the University of Pennsylvania have been told that “false allegations of rape are not common” and that the false report rate is “between 2% and 10%.”

Some administrators are finally seeing the folly in trying to teach 19-year-old drama majors and busy research faculty to properly adjudicate these cases.

And while jurors in state and federal courts are asked to use common sense and experience to determine a witness’s credibility, panelists for these campus courts are told that victims often change their stories from one day to the next or that victims may simply be unable to attempt to resist such an attack.

Some administrators are finally seeing the folly in trying to teach 19-year-old drama majors and busy research faculty to properly adjudicate these cases. “If my full-time job is being a physics professor, understanding the nuances of sexual assault and the impact of sexual assault or what it’s like to be an accused person — that’s just not in your wheelhouse,” one administrator told the Chronicle.

But even if they were offered a liability-free way to return such cases to the courts, Silverglate, a civil-rights attorney in Boston, doubts they would: “College administrators won’t use the real criminal-justice system because they cannot control it.” And, he notes, “the process would be fair and hence the desired result could not be guaranteed.” As long as administrators see themselves as social engineers with the potential to right the world’s wrongs, it’s hard to imagine they will voluntarily cede any power.

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