“It’s Title IX, Not Miranda”

Thinking back to the halcyon days when I went to college, the name by which we referred to the  campus police was “public safety” so that all of us would think of them not as law enforcers but as people in uniform who were there to help us.  Oh yeah, and they didn’t carry guns.

That’s all changed, as they are now police again, and well armed.  Like most college police, they have general law enforcement jurisdiction. When they arrest you, you go to real jail and real court.  When they shoot you, it’s with real bullets.  While we’re talking about rape and Title IX, nobody mentions the cross-over between the Disneyland of campus adjudication and the real world.  Except Ashe Schow.

Due process on college campuses has become passé, and even an impediment to justice — at least according to sexual assault activists. But police officers like Susan Riseling may be giving activists a leg up.

Riseling is the chief of police and associate vice chancellor at the University of Wisconsin-Madison, and recently told a conference audience that using the records from campus sexual assault hearings could be beneficial to police investigations.

“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”

As for those who sniffle away the requirements of due process, because it’s just a college disciplinary board, and the worst that can happen is a young man gets expelled, labeled a rapist and ruined for life, the police want to thank you.  Your ignorance and myopia, that the rights you’re attacking to guarantee that no woman should ever be sad are the same ones that make their life more difficult.

Hey, they don’t want to work any harder than they have to, and where were they going to find anyone stupid enough to do their dirty work, undermine constitutional rights, water down process and procedure from that which protects the accused to that which facilitates conviction?  Nobody could be that stupid, right?

Except you.

But no such rights exist on a college campus, allowing police officers like Riseling to use the information gathered by such means against accused students.

Here’s the trick.  Take a person, strip them of all the rights and protections to which they would otherwise be entitled in a rational society and force them into a process that compels them to speak, to defend, without knowledge of the facts against them, without advice of counsel, without the rights to remain silent or confront witnesses, without an opportunity to adequately prepare or investigate.

When a student is accused of sexual assault on a college campus, they’re often given vague descriptions of the charge against them — which may have occurred years earlier. They’re forced to come up with a defense within days, told not to talk to anyone about the allegation (making mounting a defense nearly impossible) and not allowed to have an attorney speak on their behalf.

They face a system that has been shifted against them, where an accusation is all that’s needed to brand them a rapist for life and kick them out of school. There is no due process in campus hearings — no rules of evidence, cross-examination or right to be represented by an attorney. They’re not even told that anything said in the hearing can and will be used against them in a court of law.

Boom.  It may be over after the college disciplinary board finishes its chorus of Kumbaya, or it may just be the beginning, the appetizer before a full entrée of baked Kafka.

This can apply to statements made in the course of a sexual assault proceeding, when a student has no idea of the ramifications of words and positions that can be used against him in criminal proceedings.  Apologize to the student who decided that you assaulted her because she had as many beers as you did?  That morphs into an admission against penal interest in real court, and becomes the centerpiece of a prosecution that can put you in prison.

You may not realize it. The student certainly doesn’t, but Susan Riseling clearly does, and she’s salivating at the prospect of using some dope’s un-advised, un-warned, un-protected choices to nail him to the wall.

K.C. Johnson, who chronicled the Duke Lacrosse fiasco, appreciated Riseling’s Machiavellian perspective:

“The chief offered a rare explicit celebration of what too often is implicit: lack of civil liberties protections is a desired aspect of college inquiries,” Johnson wrote. “The ‘advantage’ of the disciplinary hearing process, it seems, is that accused students have minimal due process protections, and — since sexual assault is, of course, a crime — law enforcement can then use student disciplinary proceedings to obtain information that they could not, under the Constitution, in a normal police investigation.”

That wasn’t quite what you had in mind?  Bummer. Meet the law of unintended consequences, where the rights you toss in the wind are the same ones you expect to be there for you when it’s no longer just some Title IX feel-good procedure, but real world prosecution leading to very real world prison.

And the choices left for students are to engage in the college disciplinary process to avoid being expelled, or protect their rights in the face of further prosecution.  Either way, they lose.

But if that’s what it takes to vindicate the unsafe atmosphere women feel, by assuring that no woman’s claim will ever be questioned or denied, what do you care?  After all, how can anyone be more concerned with innocent men going to prison when women have feelings that demand validation?

27 comments on ““It’s Title IX, Not Miranda”

  1. Nigel Declan

    Does Riseling’s position as Associate Vice-Chancellor at an institution where such hearings take place, which officers under her command may, with her blessing, attempt to use in criminal proceedings, potentially present some sort of legally relevant conflict, such that the arbiters at these disciplinary hearings could be viewed as agents for the police?

  2. Pen

    Doesn’t the law also apply to college campuses? How has no one ever done anything about the utter disregard for the Constitutional rights of these students?

  3. Wrongway

    Is the ‘devil in the details’ of the contract that they sign during orientation to be able to attend the college ?
    By signing the contract, they’re giving away the ‘rights’ you’ve mentioned above & have to submit to the forum laid out in the contract.. Kind of like that contract with Verizon that no one reads.. (just gimme my Fone Bruh!!) that limits you to arbitration vs. a civil court matter..
    Is that where all this starts ?

    Also, if it’s a taxpayer funded entity or is assisted by tax funds, aren’t they obligated to uphold a persons’ rights under the Constitution no matter what the contract or title IX says??

    probably dumb questions, but… ..

    1. SHG Post author

      By attending, students agree to abide by the school’s policies. And while the Constitution applies to publicly funded schools, education isn’t law enforcement, so the application isn’t equivalent.

      1. Wrongway

        any pointers for research ?
        I’ve got a basic understanding of title 9, & the Constitution,.. but this just seems such a grey area that’s being exploited to the ‘nth’ degree..
        your posts on this subject in the past, I will admit I’ve only scanned, because, so what, someone’s carrying a mattress around, cuz she lied.. My feelz, yadda yadda..
        I guess I honestly didn’t see this coming..

        1. SHG Post author

          Sure. Start by picking a law school. Get admitted, study hard, graduate, pass the bar, practice for 10 to 20 years. Let me know when you’ve got that accomplished, and I’ll give you the rest.

          1. Foolish Pride

            So is there then a point to this blog or should we all just bow down to elitist pricks like yourself? “Oh, the plebs are too stupid to understand, they should just do as they’re told.

            1. SHG Post author

              Of course there’s a point to this blog, to provide free legal answers on demand to the absolute stupidest asshole on the internet. Welcome. I’ve waited a long time for you.

            2. Wrongway

              Hiya FP,
              I might be an idiot when it comes to the law.. But I’ll bet ya he can’t back a 53′ trailer into an alley dock from the blind-side..
              or he’s ever stood on the tarmac at Diego Garcia watching B-52’s taking off to announce the start of Desert Storm..
              or that he knows what a schmuk is..
              so it’s all good..

              I love this curmudgeon tho, he doesn’t cut me or anyone else any slack.. I can respect that.. maybe you should too..

  4. DHMCarver

    “chief of police and associate vice chancellor” — simply knowing that someone has that title gives me the chills. . .

  5. CIC

    Is it possible for a defendant in a Title IX-inspired on-campus railroading to simply not participate? He is already going out the door with a big owie on his transcript, why participate at all? Send a pleasant letter to The Powers That Be and decline to show up, be interviewed, etc., on the basis of not testifying against oneself.

    Might be interesting to see what happens. Definitely no chance of admissions against interest, unless somebody tries to allege in a real court that not participating in a sham proceeding is an admission of guilt. I don’t think that this is covered by admission to the school, but if it is, we need to know now.

    1. SHG Post author

      Sure, one can always walk away. The outcome isn’t always predetermined, though, and guys do win sometimes. If he does walk away, he will lose. So, there’s the choice.

      Note: Sorry, but I had to change your name. There is only one curmudgeon in chief in my house.

  6. RK in TX

    What if the accused student were to show up along with his/her attorney? Can they really refuse to allow the attorney to even attend the meeting?

      1. RK in TX

        Thanks for the quick reply! So, as a matter of principle, why shouldn’t all Americans, at essentially all times, have a “right to counsel” so long as they are willing to pay for the services of that counsel (i.e., to not burden anyone else with the expense of their decision to hire a lawyer)? I, for one, if summoned to a hearing where I knew that I was going to be accused of something serious, regardless of whether it was formal or informal, public or private, might very well be willing to pay an attorney to come along with me. So why should I, or anyone else in the USA, be prevented from doing exactly that? Would this require a constitutional amendment? What would you think of such a law?

        1. SHG Post author

          I agree completely, but unfortunately, that’s not the law. That doesn’t prevent colleges from allowing counsel, but they chose not to.

          And right to counsel is only one of the basic due process rights denied defendants by colleges. It’s a long list.

  7. SLC

    Recently promulgated process in the University of Missouri system allows the presence of advisors for both accuser and accused. These advisors may not question the evidence or the parties involved. Advisors allowed include attorneys. Does the UW system not allow advisors of any kind to be present?

    The UM process vests a strange mix of investigatory, prosecutorial, and judicial authority in the panels convened to hear complaints. For example, the these panels can investigate outside the bounds of what each party brings to the hearing without either party being able to impeach it. Moreover, challenges to panel membership can be made by the either party but it’s the panel that decides whether the challenge carries. I’ve refused to have anything to do with it all.

    What i’ve told people is that would be well advised to bring an attorney as their advisor and to confer with the attorney at every opportunity. Since the attorney can take notes of the proceedings, I’d let it be known, should things not go my way, that I would sue everyone, including the accused, it it was at all possible: Scorch the earth.

    Ultimately, the only brake on these proceedings is the fear which administration, staff and faculty have for being held liable for their actions in civil proceedings. Oh, and the prospect that a future administration in DC orders the OCR’s in DoJ and DoE to issue Dear Colleague letters that effectively reverses this policy and tells the universities: What we wrote before? Sorry about that. We don’t mean it any more. Oh, and you’re on your own now.

    1. SHG Post author

      Procedures vary from college to college. This isn’t about any one particular college. Most do not allow an attorney to be present at all. Suggesting guidance based on one school can be misleading or confusing as to another, since what will be available in one place may not in another.

      1. SLC

        Understood.

        I find faculty collaboration by participation in these panels distasteful at best. Only after matters were too far gone did the Mizzou law faculty stand up, but to no avail.

        The sense I got was that the whole business was a collaboration of a subset of faculty, the administration, principally HR, and the governing board. The result seems destined to be a law suit generating machine and I do not wish them well.

  8. Coffee

    Hey Scott, thanks for referencing Ashe Schow in this post. It seems like she, and her articles, are largely ignored by most folks who comment on this subject.

    1. SHG Post author

      Are you kidding? I think she does a spectacular job, and I read everything she writes. I’m riding her coattails here.

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