The University of Kentucky tried once, resulting in a one-year suspension of a guy who was on the losing end of drunk sex. How drunk isn’t known, but drunk enough to lose under the peculiar view of two drunk kids means the guy is a rapist and the gal is a survivor. But to its credit, the decision was reversed and sent back for a Mulligan.
The second time, the sentence was a five-year suspension. That will teach him not to appeal, and indeed, he learned the lesson after the Appeals Board tossed it a second time and sent it back for round three. Instead, he took it to federal court in an effort to hop off the merry-go-round.
The male student complained that the “hearing” provided by UK was constitutionally deficient, in that he was denied due process by the “withholding of critical evidence and witness questions,” as was held on appeal. The second try wasn’t any better.
The UK response was a promise that they would do better the third time. Really, they would, and that they were entitled to try under the Younger abstention doctrine.
Senior Judge Joseph Hood, of the Eastern District of Kentucky, in a workmanlike opinion, went through the three-prong Younger test which, “as a matter of comity,” precludes a federal court from sticking its nose into the “legitimate” activities of a state. While Judge Hood went through all three prongs, the first was dispositive. (Quote broken into paragraphs for ease of consumption.)
UK, an arm of the Commonwealth of Kentucky, initiated the investigation and enforcement action against Doe, and there are many procedures incorporated into the UK disciplinary system that are akin to a criminal prosecution. As discussed above, upon notice of an allegation of sexual misconduct by a student, the OSC conducts an investigation and, if the allegations are supported by reasonable suspicion, initiates a disciplinary proceeding.
The accused receives notice of the charges, a hearing before an independent fact-finding panel, the assistance of an attorney or advisor, the opportunity to cross-examine witnesses, the opportunity to call witnesses and present relevant evidence to advocate a defense. If the student is found to be in violation of the Code of Student Conduct, he or she is subject to sanctions, including suspension or expulsion from the University, and permitted an appeal to an independent tribunal.
Although not addressed by the Sixth Circuit, the Ninth Circuit has held that where legal representation at a hearing is present and tangible sanctions may be imposed, the adjudicatory hearing is both “quasi-judicial” and “quasi-criminal” and that Younger applies.
Like so many rationales, there is a trick to appreciating Judge Hood’s ruling. The procedure employed by UK, on its surface, gives the appearance of being fair, because it uses many of the right words from the due process lexicon. As such, it can’t be said that it’s in flagrant violation of due process, and so awful that it can’t be saved by Younger.
But had the male student lost on appeal, and had this matter not been sent back for a third hearing, it would have been ripe for adjudication as a civil rights violation without any abstention issue. That’s one of the most endearing features of criminal law, that the defendant has to lose before he can challenge the process that resulted in the loss. Here, having prevailed on appeal, UK enjoys the benefit of another try.
But in the course of his ruling, Judge Hood characterized the nature of the proceedings as “akin to a criminal prosecution,” and “quasi-criminal.” This is a significant development. In 2011, following the Department of Education’s “Dear Colleague” letter, which putatively seized control over rape and sexual assault under its idiosyncratic vision of power to prevent sexual harassment, FIRE responded in a tendentious letter that, buried deep within its brutally painful verbiage, raised the point that schools were being told to play criminal courts, while pretending to safeguard the sexual virtue of fragile young womanhood.
Putting aside the plethora of problems with campus Title IX adjudications, from the reduction of the definitions of rape and sexual assault, the burden shifting of affirmative consent, the standard of proof, the distinction between affording actual due process and mouthing its language, and the basic competency of passionate dilettantes to perform the task, the fact that this is a quasi-criminal proceeding wrapped in social justice rationalizations has been placed on the table. Judge Hood recognized that a process that can result in the imposition of a penal sanction is tantamount to a criminal proceeding.
The law has undermined what should have been a clear distinction for quite a while now, calling the imprisonment of sex-offenders after the completion of their sentence a civil matter, as if they put curtains on their jail cells, and absolving the states from ex post facto sentencing for sex offender registration and limitation that didn’t exist at the time of conviction. Government learned the trick, that just call the penalty civil and courts will shrug and proclaims, “well then, it’s not criminal, so we’re cool with it.”
It is, of course, a lie. If punishment can be imposed, then it’s criminal in nature. And punishment, such as suspension or expulsion, is no less punishment by pretending it’s not to punish the wrongdoer, but to protect the victim. However, the Supreme Court has forsaken the distinction in order to uphold sex offender laws, empowering states to avoid the requirements of criminal law by wrapping punishment up in a pretty bow. No one got too bent out of shape when they did so, because everyone hates sex offenders, but that’s how the slide down the slippery slope begins.
The difference here is that the wrongdoers aren’t systemically despised, but our children, our sons, being hung out to dry by the radical approach of education bureaucrats, the enabling of college officials and the cries of neo-feminists for special treatment that relieves them of any responsibility for their trespasses.
As a quasi-criminal proceeding, the concern for the lack of due process (among the myriad flaws) becomes manifest. The sad tears of post-sex regret must not be sufficient to sacrifice the lives of male students to a procedure so deficient as to range from joke to fait accompli. But as Judge Hood concluded, the procedure won’t be ripe for serious review until the harm has been done and another young man has had his life wrongfully ruined. That, too, is an all too familiar piece of criminal law.