Penn 3L: Due Process Is For Misogynists

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.


22 thoughts on “Penn 3L: Due Process Is For Misogynists

  1. Patrick Maupin

    And no rational person, feminist or not, would think otherwise.

    There are loud, obnoxious, irrational people all over the political spectrum. Most of these can be safely ignored; unfortunately in the current climate, many of the loud, obnoxious, irrational people who happen to call themselves feminists cannot safely be ignored, because they are being taken way too seriously by those in power, and laws are being written and university policies are being updated.

    Unfortunately, they have done such a good job kafkatrapping the general public that most criticisms actually increase their powers. This too shall pass; the only real question is how much more damage happens first.

  2. GregD

    This is unbelievable. Her argument boils down to this: Penn should be able to railroad individuals accused of rape because it is a private institution and the only thing they must uphold is their contract. As you point out, this is disingenuous at best and unbelievably wrong at worst. Aside from the implied covenant of good faith which you correctly point out, she forgets that the reason Penn is changing its policy is because a FEDERAL governmental unit has suggested (read threatened) that they do so, or else. Finally, why should a private college limit the substantive due process rights of accused rapists even if they are even if they are within their rights to do so?

    1. SHG Post author

      Excellent point about Penn acquiescing to the OCR “Dear Colleague” threat, while abjuring responsibility for due process.

  3. Clarence

    “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?”

    Talk about a straw man.

    1. John S.

      I would even go so far as to guess that assaulting a police officer is one of the few things that tends to receive even less of that “due process” that the author finds to be so passé, but far be it from me to second guess such fine intellect.

    2. David

      Not to mention (disinegnuously?) presuming guilt in making this argument – someone who has committed rape, moved newspapers, cheated, or assaulted a police officer.

      Not someone who is merely accused of rape (or something that is not criminal but runs afoul of university rules or other sexual assault), accused of moving newspapers, accused of cheating, or accused of assaulting a police officer.

  4. Jack

    So due process and fairness are now misogynistic…what a lovely day. At least this supposed 3L is being honest – I really think this is the first time I have ever seen someone come right out and say that without mincing words, shocking as it may be.

    If the ultimate goal is to remove due processes and fairness from schools, I would much rather hear someone just spit it out instead of couching it in BS and their fee-fees.

      1. Jack

        I use “supposed 3L” because The Daily Pennsylvanian makes it seem like this is a letter from some random student – the typical 3L twenty-something coming from undergrad. She spent more than a decade after graduating from Bryn Mawr writing policy for women’s rights and health care organizations.

        She isn’t just some random student – take a look at her LinkedIn.

        1. SHG Post author

          Aha. That explains why her letter was far better written than what one would expect of a 3L. And Bryn Mawr. That must have been long after the tragic kiln explosion.

          1. Jack

            I may be young, but most Animal House references don’t just go sailing over my head! Kids still need something to watch and giggle at while they are stoned and/or drunk off their asses in college…

  5. Reed

    Remember when the federal government threatened to withhold highway funds unless states upped their drinking age to 21years old? Ahh, leverage, which, to quote a t.v. show that I can’t remember the name of,” is a fickle bitch”.
    When I was a judicial affairs officer, my parting salvo was to inform a nontraditional student to insist that the hearing be scheduled at a time when his lawyer could attend. He had racked up a pile of small–and harmless, demerits (it was a maritime college) that triggered a disciplinary hearing which could have lead to his dismissal from school. As with every higher ed institution that I know of, their conduct code prohibited legal representation at their hearings. I had sat through enough of these to become offended by the “seizures of property” and “contract violations” (to be quick about it) that a sophisticated institution was pummeling on a kid (most of the time). I left before the non-trad was “processed”, but I saw him years later. He hugged me and told me that he had been trying find me to thank me–he took my advice and the school caved. He ended up graduating on time.
    My point–most higher ed conduct codes are archaic, anachronistic, and unread (reading is a lost art). Moreover, they are written–and implemented, in a way so as to provide ample fodder for the argument that the entire concept is improper, unfair, or even unlawful.
    Back then, I told the nontrad that I thought that the contractual obligations created by the acceptance/tuition agreement were unfair and unilateral. The school took the tuition money, creating a duty to provide the services advertised. Any action by the school that may lead to the student’s tuition money failing to obtain a concominant service delivered to that student can absolutely be engaged in unfairly–and unlawfully. Which was the rationale behind my advise to the non-trad–they are about to reach into your wallet and take your property away from you, so you absolutely should have legal counsel with you during the process.
    However, as time goes by, and given my experience with the judicial affairs “industry” and with being a lawyer, it really appears that to try to differentiate between whether the school’s duty is based in “municipal” law or in contract law is a red herring, as is couching the issue in terms of the “process” being a fundamental fairness question. Rather, it seems that school conduct codes and processes seem to exist simply to be a tool to exploit and control the relationship between the customer and the business/government in a wholly one-sided manner. I know its a mind-blowing concept to consider…what would be the alternative, some may ask. I am not advocating complete absence of the imposition of structure on conduct. Just the complete rethinking of how, why, and by whom (the stakeholders) the structure is crafted and followed.
    The crazy thing is that, a lot of the time, I left the student to determine what the code would call “discipline”. Every time, the student, without being “processed”, imposed a harsher plan on him/her-self than the institution ever could have. And, every time, the student grew, or benefited greatly from that. The imposition of morality–or even of fairness, by an outside source does not nearly have the same beneficial and developmental outcomes as the individual’s internal imposition of morality, or “discipline.” I’m just sayin’….

  6. Jordan

    Here is the way it should work. In a college setting, if someone says someone raped them, the accused person should immediately be expelled forever. That’s all the process necessary.

    “Evidence” and “due process” are merely privileges of the patriarchy. Because allegations of rape on a college campus are never unsubstantiated:

    [Ed. Note: Links deleted because reasons.]

    Sound fair? Because if we start to evaluate the evidence, the narrative that college campuses are hot beds of rape being ignored by the administrations might start to fall apart….

      1. Jordan

        I do give Emily Turner credit for conveying so few thoughts while using so many words. She writes like a bona fide legal academic. Bravo.

        Also, is “pernicious” some sort of plant?

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