The sun rises in the east and sets in the west. Sixteen University of Pennsylvania law professors issue an open letter challenging the school’s new sexual assault policies for the lack of fundamental fairness. 3…2…1…
The Daily Pennsylvanian publishes an op-ed by a Penn law 3L, Emily Turner, calling out their “sexist policy preferences.”
By conflating the extensive procedural protections rightly afforded to criminal defendants with “fundamental fairness” 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.
Ah, survivors. The faculty letter was a relatively tepid challenge to the imposition of the Department of Education’s Office of Civil Rights imposition of its “sexist policy preferences,” imposed by fiat without any cognizable authority for such an administrative command, that girls rule, boys drool. But any challenge that suggests that the accused be given fundamental fairness is a smack to the face of survivors.
Having read many writings by third year law students, I can’t help but question whether this letter was written by Turner or, perhaps, by someone else, or with a great deal of input by someone else. It’s a very well written letter, far better than what one would expect a 3L to be capable of writing. It’s replete with error, but carefully written nonetheless.
No, “due process of law is not window dressing,” 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.
That’s kind of true, but not quite, the sort of facile assertion that reflects a disingenuous presentation of the law. Public universities owe students due process rights. Not necessarily the full panoply of rights provided in a criminal proceeding, but at least minimal. Yet, that offers little to inform what minimal due process rights include. The right to face one’s accuser? The right to be informed of the charges and evidence against one? The right to question one’s accuser? Or should I say, survivor.
While you critique the U.S. Department of Education 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.
Well, no. First, the public/private distinction isn’t quite as clear as this would suggest. Most universities get substantial public funding, so even though they aren’t “public universities,” such as Penn State would be to University of Pennsylvania, they feed at the public trough. But even schools that are wholly private, and are not constrained by the duty to apply, as does every public entity, constitutional protections, they are not free to discipline with no process whatsoever.
Every contract carries an implied covenant of good faith, that it will be executed in a way that is fair to all parties to the contract and they will deal with each other honestly and fairly. Fairness. That’s what substantive due process means. Private schools are not entitled to be arbitrary and capricious. Private schools are not entitled to take a student’s tuition and dump on them at will, naming them rapists because it chooses to believe a naked accusation from a “survivor.”
Furthermore, perhaps because you know full well that Penn students have no claim to due process in this setting, you failed to explore what your arguments mean in the context of actual due process at state universities.
This is where the argument goes down the rabbit hole of irrationality. Yet, it reveals the more disturbing problem, hidden just below the surface of its carefully worded rhetoric, that this law student argues against the inherent virtue of due process. Not only is it untrue, but to contend that it is proper that students have “no claim to due process” is a shocking assertion.
Why do you think it should be legally harder to expel someone for rape than for moving newspapers, or cheating or assaulting a police officer?
Aside from the obvious reasons, such as that a student expelled for rape will carry a stigma that will fundamentally alter every aspect of his life for the rest of his life, the better argument would be why fundamental fairness shouldn’t be required for all campus discipline. It should.
Your collective signatures should carry with them not just the gravitas of your well-earned reputations, but also the weight of sound legal theory and academic rigor. Unfortunately, you are correct that the “concerns about fundamental fairness” expressed in your open letter are “not academic or theoretical in nature.” Rather, they are anxieties born of uninformed and unexamined sexism. This attempt by sixteen learned law professors to — unwittingly, it seems — cover your sexist policy preferences with a patina of legal authority exemplifies the pervasive bias against women that Title IX was enacted to address.
And so, the sun sets in the west, and the challenge to the facial lack of fundamental fairness gets chalked up to misogyny, “anxieties born of uninformed and unexamined sexism.” There’s a shock, that the “policy preference” of fairness “exemplifies the pervasive bias against women.”
While it’s easy to point out that the law students at Penn, if Turner is at all representative, are getting no better an education than their sisters at Harvard, what bone has been implanted in their heads that makes them conflate fundamental fairness with misogyny?
While Turner “Gertrudes” due process, necessary and proper elsewhere but not when it comes to survivors, she makes the point that of all the accusations that can be brought, only one demands special treatment by removing any aspect of fairness from it. By doing so, she unwittingly makes the lawprofs’ point, that these policies are dangerous and wrong, because accusations, whether of rape or plagiarism, are worthless if the accused isn’t provided with fundamental fairness. And no rational person, feminist or not, would think otherwise.