How Fair Is Too Fair?

Among the myriad complaints arising from colleges adjudicating rape and sexual assault claims following the unlawful and misguided efforts of the Department of Education, Office of Civil Rights, to compel schools to recreate their campuses into gender-Utopias, is that the accused are denied due process.  This is but one of the failings, but it’s a huge one.

But colleges and universities are by no means prevented from providing students accused of crimes the basic protections that comprise minimal standards of fundamental fairness, and not all schools have chosen to burn some students in order to pander to the feelings of others.  University of Tennessee is such a school. And six female students have had enough of it.

Six women filed a federal lawsuit on Tuesday claiming the University of Tennessee has created a student culture that enables sexual assaults by student-athletes, especially football players, and then uses an unusual, legalistic adjudication process that is biased against victims who step forward.

An “unusual, legalistic adjudication process”?  That sounds pretty scary. What could they be talking about?

The plaintiffs say that UT’s administrative hearing process, which is utilized by public universities across the state, is unfair because it provides students accused of sexual assault the right to attorneys and to confront their accusers through cross-examination and an evidentiary hearing in front of an administrative law judge. The administrative law judge who hears the case is appointed by [UT Chancellor Jimmy] Cheek, the lawsuit says.

So the “unusual, legalistic adjudication process” involves a few of the most basic elements of due process, systemic measures designed to provide those accused of heinous offenses the opportunity to defend themselves?

The plaintiffs say that UT violated the Title IX laws, which protect students from gender discrimination in federally funded education programs. UT created a hostile sexual environment for female students by showing “deliberate indifference and a clearly unreasonable response after a sexual assault that causes a student to endure additional harassment,” according to the lawsuit.

The lawsuit said blame for the hostile policies should be placed at the very top of the UT administration.

In the past, the challenges were largely focused upon the accusatory side of the platform, the dilution of definitions of what constitutes a rape or sexual assault, the adoption of a series of excuses to explain away actions and inactions by the accuser such that anything done, or not done, served as proof that an accusation was true, and the quasi-religious shifting of burdens from an accuser being required to prove the truth of her allegations to the presumption that accusations are true and it’s the accused’s duty to disprove them.

This reflects a shift in approach, that the provision of a few of the basics of due process to a student accused of rape or sexual assault is, in itself, a violation of Title IX, a “hostile” environment.

In response, UT offered the usual tummy rubs, but with a caveat:

Like the many other college campuses facing the challenges of sexual assault, the University of Tennessee, Knoxville, has devoted significant time and energy to provide a safe environment for our students, to educate and raise awareness about sexual assault, and to encourage students to come forward and report sexual assault. When the University receives a report of sexual assault, we offer care and support to the person who came forward and work to investigate and resolve the matter in a timely, thorough, and equitable manner. When warranted, the University takes disciplinary action but will not do so in a manner that violates state law or the constitutional due process rights of our students. (Emphasis added.)

This is, frankly, a bold statement, despite the fact that there is nothing that should be controversial about it.  At Michigan Technical University, president for student affairs, Les Cook, explained his understanding that Title IX trumped the Constitution:

“(The Constitution) doesn’t supersede it,” Cook told Michigan Tech’s Daily Mining Gazette. “Title IX is a federal compliance policy. Those policies supersede anything else.”

Putting aside the question of whether someone so lacking in the knowledge of basic civics should be allowed anywhere near students, it reflects the approach of many college officials who are so peculiarly focused on OCR’s Catherine Lhamon’s pet issue that they’ve lost all perspective.

Up to now, the fight has largely been to address the fact that colleges lack the competency to adjudicate issues such as allegations of rape and sexual assault, that they are politically inclined to favor the accuser without regard to evidence or the harm they perpetrate on the falsely accused, and the absence of any lawful authority for their involvement in such matters in the first place.

As these failings have begun to filter through the rhetoric, there has been the start of recognition as to how absurdly unfair these campus adjudications have been to the accused.  It has been called into question in Congress, and by state legislators. Georgia state representative Earl Ehrhart laid it on the line:

And while university educrats point to threats from President Obama’s Department of Education, Erhart has a threat of his own: “You think you’ve got an issue with federal bureaucrats threatening your federal funds? … This committee controls your funds, Mr. President, and I want to see a clear statement from all of you — beyond what the [Board of] Regents is requiring — before I’m even going to have a conversation with you about your budgets, presidents.”

Is there a way for rape and sexual assault accusers to shut down this threat to require schools to provide basic due process to those they accuse? A court decision holding that providing due process, in itself, is a violation of Title IX would do the trick.  After all, no legislator can withhold funding to a school for merely complying with the law.  And it’s not like the Constitution overrides Title IX, as there is nothing more fundamental to maintaining a safe environment for women on campus than depriving the accused of due process.

So how fair is too fair? It all depends on whose life is worth sacrificing to the cause.

10 comments on “How Fair Is Too Fair?

  1. Ahcuah

    So, care to take any bets? Will the lawsuit be dismissed for failure to state a claim, or will it somehow survive to summary judgment before being tossed?

    1. CLS


      Filing in the Middle District of Tennessee was a smart move by the Jane Does’ attorney, as if this were presented in the Eastern District it would be summarily tossed out on its ass with the Plaintiffs’ attorney being told to go sit in a corner and think about what he did.

      Middle District means it’s a toss up.

      That said, a read of the sixty four page complaint reveals some allegations that are honestly some of the stupidest shit I’ve seen in my life. I hope the judge who gets this case reads everything very carefully.

  2. losingtrader

    “… the quasi-religious shifting of burdens from an accuser being required to prove the truth of her allegations to the presumption that accusations are true and it’s the accused’s duty to disprove them.”

    This is precisely why I’m never taking a kilo of weed to Saudi Arabia or Singapore…………………. again.

  3. Fubar

    And it’s not like the Constitution overrides Title IX, as there is nothing more fundamental to maintaining a safe environment for women on campus than depriving the accused of due process.

    We haven’t to date, but we should
    give credit to prophet Ed Wood.
    His Plan 9, with law’s Title,
    has proved itself vital
    to keep us safe for our own good!

    1. Charles morrison

      My “favorite” factual allegation was referencing a former athlete being held on a large bond for some homicide charge involving god knows who, under god knows what circumstances after having been booted from the school.

      Call me old fashioned, but I fail to see how a facially neutral policy can implicate gender discrimination. My eyes blurred from tears of laughter, but I didn’t see an allegation that ALJs, the right to counsel, etc. are only used for male athletes under the prescribed procedure.

      At least mention disparate impact if that’s the crux of the case. If needed, remove some the neat pictures to work it in.

  4. MonitorsMost

    I can’t believe I wasted my time reading that complaint. What a huge steaming pile of poop. “Further the rapper’s [Lil’ John] prescience at practice was praised by UT football coaches in social media repeatedly over the following days and weeks without any disclaimer to the sexual violence central to the rapper’s public persona and music.”
    Dismiss the whole thing, grant leave to amend on deliberate indifference based on failure to investigate as alleged in a couple of the Jane Doe cases. Reserve on issue of sanctions.

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