Response to Open Letter from Members of the Penn Law School Faculty
In your Open Letter of last week, you set aside your own political disagreements to denigrate policies that could lead to safety and educational equality. By conflating the extensive procedural protections rightly afforded to criminal defendants with “fundamental fairness”
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in the context of a school disciplinary proceeding, your letter perpetuates the harmful myth that survivors of sexual violence should be disbelieved, silenced and denied non-criminal relief unless they seek and obtain criminal conviction of their assailant. No, “due process of law is not window dressing,”
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and you have misstated the law of due process in the university setting. It is generally established that public universities owe students minimal due process rights, and private universities owe them none.
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While you critique Office of Civil Rights guidance that the evidentiary standard used should be a “preponderance of the evidence” standard instead of “clear and convincing” evidence, as a legal matter, private universities can discipline students with no process whatsoever. They must only adhere to the contract set forth by their own policies. Thus, the Open Letter must be seen for what it is: a disagreement with Title IX’s mandate that sexual assault survivors not be made to struggle through grievance procedures that specially insulate those accused of sexual assault. This policy, and the OCR’s guidance, was designed to fight the pernicious effects of sexism, including sexual harassment and assault, on our campus. Title IX, a civil rights law, mandates this policy for the purpose of ensuring that people are not denied the ability to pursue and enjoy their education on the basis of sex. The proceedings required are not criminal-light proceedings, despite your attempts to portray them as such. Although Penn’s data on discipline is sadly lacking,
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grievance proceedings are generally remarkable for the lack of consequences for those found to have committed a sexual assault. Few students found responsible for
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See
Open Letter From Members of the Penn Law School Faculty, Sexual Assault Complaints: Protecting Complainants and the Accused Students at Universities 1 (Feb. 17, 2015),
available at
http://media.philly.com/documents/OpenLetter.pdf.
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Id.
at 5.
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For this reason, individuals suing private universities must use a theory of breach of contract if the university does not follow the procedures promised by its student policies. E.H. Schopler,
Right of student to hearing on charges before suspension or expulsion from educational institution
, 58 A.L.R.2
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903, 2 (“[A]ny right of a student to be given a hearing, or a formal hearing of a judicial nature, prior to his suspension or expulsion from a private institution of learning can rest only upon the specific and implied terms of the contract of admission.”). For an example of this sort of pleading, see http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Lewis-McLeod-Complaint-against-Duke-University.pdf .
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Transparency is crucial to fairness in process, but there was no open letter to the administration requesting the information necessary to build a more just system when no disciplinary data was released for over four years. A perusal of the latest report shows that in 2012-2013 and 2013-2014, 15 complaints were brought in the category of Indecent/Sexual Assault. Penn does not break down sanctions data by conduct sanctioned, however, out of the hundreds of complaints brought under all categories of misconduct, only 3 resulted in expulsion. You can see this data at https://secure.www.upenn.edu/osc/documents/OSCAnnualReportData20102014.pdf .
