Samantha Harris at FIRE is making administrators at the University of Colorado, Boulder, very sad.
Last week, the University of Colorado Boulder (CU) settled a lawsuit brought by a male student who was accused of sexual misconduct. What we know about the settlement should concern everyone who cares about how colleges handle claims of sexual misconduct, because it illustrates who universities are really looking out for: themselves.
Strong stuff. After all, isn’t compromise a virtue in itself?
On November 7, 2014, the plaintiff, who went only by the pseudonym “John Doe,” filed a complaint against the university in federal court, alleging that the university discriminated against him on the basis of sex, in violation of Title IX, by denying him basic due process in the course of a university judicial proceeding against him for sexual misconduct. In addition to claiming the university used unfair procedures against him, the student maintains that the sexual encounter in question was consensual.
The backlash of campus disciplinary procedures that fail to provide due process to the accused is that they get to go to grown up court where real judges and real juries get to make real decisions that aren’t dictated by the gender politics of “survivors.”
When “John Doe” did this, a collective gulp must have gone through the CU administration. So they settled the case, starting with a payment of $15,000 and going on to the nitty gritty:
Here’s the critical part:
“In response to any question about whether Mr. Doe would be welcome back to the university, the university will respond in the affirmative,” CU officials write in the settlement agreement.
If any party, such as another college or university, asks CU about John Doe’s disciplinary record, CU has agreed to say only: “In fall 2013, John Doe (his actual name will be stated) was subject to a student conduct investigation and was found to have violated two code provisions.”
Beyond that, the university will direct all inquires to John Doe and will not provide further information unless he signs a waiver.
So to sum this up, despite continuing to maintain that Doe committed sexual misconduct, CU will tell anyone who asks that he would be welcome back at the university, and, if asked directly, will be intentionally vague about the details of its misconduct findings.
In case the detail failed to smack you in the face, the upshot of the settlement is one of two things: either an innocent male has been expelled, causing outrageous upheaval to his life, or a rapist will have his tracks covered by CU’s dissembling.
While there is a mechanism by which the next school would at least know that a problem exists, even if the nature of the problem isn’t revealed, there is also an excellent chance that the initial response, that he would be welcome back to CU, would be more than sufficient to conclude that whatever the problem, it couldn’t be too big a deal. You know, like rape.
How Solomonic of CU to cut this deal. It bails the university’s butt out of a lawsuit for its failure to provide its male student with due process, but does so at the expense of everyone else. Just because the student was denied due process does not mean he didn’t rape. Got that? Sometimes, the systemic denial of fundamental fairness means a rapist walks. And if that’s the case here (not saying it is, but impossible to say it’s not), the result is that CU’s settlement allows a rapist to get into another university with its tacit blessing and rape again.
Was that what you were trying to accomplish?
[W]e believe an agreement that saves the university tens of thousands of dollars in defense costs was a prudent use of the university’s resources.
Money talks, baby. Higher Ed doesn’t live on feminist love alone.
One of the principal thrusts of FIRE is that campus disciplinary tribunals are the wrong place to determine whether the crimes of rape or sexual assault occurred. They aren’t good at it, from investigation to determination. But then, they aren’t constrained by all that technical legalish stuff.
So much of the current conversation around universities and sexual misconduct proceedings paints universities as the kinder, gentler alternative to law enforcement—a place where traumatized students can turn and have their interests looked after by people who care. And right now, because of the tremendous pressure universities are facing from the federal government to come down harder on sexual misconduct, it may appear to the untrained eye as if universities really are more concerned than law enforcement with the well-being of alleged victims, at least with the rate at which they’re punishing the accused.
Aside from the kinder, gentler handling of survivors, real courts use these things called “laws,” that include these things called “words,” that have these things called “definitions,” that don’t bend to the feelings of survivors. And then there are the police, who use this stuff called “evidence” to support the accusations, as if they doubt that any cry of rape needs any further proof of its truth.
But it’s important to remember that at the end of the day, universities are businesses, and just like almost any business, they will look after their own interests first. And that reality needs to be a part of every conversation about whether universities should really be handling claims like this in the first place.
Yet if a woman is raped, because none of the arguments in favor of due process to the accused is any indication that rape doesn’t happen or that rape isn’t a horrific crime, the same gentle hands into which her life is entrusted may be the first to throw her to the wolves when the potential for the forced reallocation of scarce resources is on the table.
The settlement here is a prime example of how the concern for the well-being of students, whether accuser or accused, falls in the face of a challenge in the real world. Sure, CU could have insulated itself by crafting procedures that provided meaningful due process to the accused, but then it would have had to endure the cries of misogyny that reflexively follow any effort to give an accused student fundamental fairness.
On the other hand, had the claim been brought to a real court, it might have had to go through the unpleasantness of actual scrutiny, but its outcome wouldn’t have put a potential rapist back onto a college campus rather than cost CU the price of defending its indefensible system.