What happened in the Dean’s Office at Boalt Hall, the University of California, Berkeley, law school? Enough to get the former dean, Sujit Choudhry, shit-canned as Dean and permanently tarred as a sexual harasser, even though it didn’t go as far as to strip him of tenure and burn a scarlet letter into his forehead. Choudhry is taking his case to federal court, and his friend, Rick Hills, has discovered the virtue of due process.
Five years ago, I criticized my friend Peter Berkowitz for insisting in a Wall Street Journal op-ed that criminal procedures – in particular, the “beyond-a-reasonable-doubt” (BARD) standard — be imported wholesale into university hearings where accusations of sexual misconduct are being adjudicated. Without taking any position on the right standard of proof, I argued that one could not automatically assume that the BARD standard was appropriate for a university’s administrative hearing where the stakes are not personal liberty but rather suspension or expulsion.
The justification for criminal trial procedures favoring the accused is that the social and moral costs of convicting one innocent person vastly outweighs the costs of letting a lot of guilty people go free (the exact ratio of false positives to false negatives being a conundrum in which 1L criminal law professors delight*). The appropriate ratio of false negatives to false positives in the university setting is, to my mind, a closer call. Because the procedural norms for these university adjudications are both hotly contested and reasonably disputed, I urged that the U.S. Department of Education not prematurely centralize them with OCR guidance documents but instead allow universities to experiment with different procedures. (Paragraph broken up because it was too damn long.)
While Rick may not have been on board with OCR, he wasn’t exactly off board either. Experiment! It’s not as if anyone is actually harmed by toying with due process, feeling your way through how much process is really needed to be fair to a person. There may be collateral damage along the way, but that can’t be helped. Sorry your kid was expelled from school, his future ruined, his life in shambles, but we have to experiment! So sorry.
Until it touches your life. Choudhry’s university inquisition touched Hills’. Suddenly, he gets it.
Peter has now trained his sights on one of those decentralized experiments – namely, University of California’s attempt to re-try an accusation of sexual harassment against former Berkeley Law Dean Sujit Choudhry for which Choudhry has already been charged, investigated, and punished. This time I have to agree with Peter as well as with Brian Leiter and Slate: This is a Dr. Frankenstein’s experiment gone horribly awry. As Choudhry’s complaint in federal court alleges, there is an egregious assault on procedural due process going on at U.C. Berkeley. After the jump, I will offer my reasons for believing that President Janet Napolitano, the President of the University of California, is abetting mob justice in urging a do-over.
The underlying complaint against Choudhry can be briefly summed up as the occasional cheek kiss in the European fashion within (what was believed to be) a closely-knit group of co-workers, without any lascivious intent or complaint. Or, as the “survivor” put it,
Choudhry became Dean of Boalt Hall in the summer of 2014. Tyann Sorrel, the complainant and now plaintiff in a civil case against both the University and Choudhry, was Choudhry’s administrative assistant. According to the report from Berkeley’s Office for Prevention of Discrimination & Harassment (“OPHD”), Sorrell accused Choudhry of hugging her, kissing her on the cheek, touching her on her shoulder and arms, and, on one occasion, taking “the Complainant’s hands and put them on his waist, rubbed her hands and wrists that were on his waist, and kissed her on the cheek.” Sorrell stated that these acts started in September of 2014 but that they “escalated in February of [sic] March 2015 to multiple times, daily.”
Sounds creepy, right?
No, it sounds like sexual harassment. Creepy too, but that doesn’t cover it. And it’s also not the right question. The right question is whether Sorrell’s allegations are accurate or not. And here’s the kicker: presenting the competing versions in a blog post, even one that seeks to be as fair and objective as Rick’s, is too little too late. The mechanics of the academic inquisition are in place, as dictated by the Department of Education’s Office of Civil Rights in their guidance letters that tell schools, “do it our way or lose your federal funding,” even though it’s mere guidance. Get it?
In this instance, the issue is whether double jeopardy applies, as the mob isn’t satisfied that Choudhry wasn’t completely, totally, permanently destroyed.
With the courage that we have gradually come to expect from university administrators, support for the provost’s decision melted away. President Napolitano, under fire for the university’s handling of entirely different cases against other faculty, falsely accused Choudhry of “groping” and called for his being banned from campus. Students demonstrated against Choudhry’s presence on campus, chanting that he had to be fired, and the faculty Senate gave an award to Sorrell for unmasking a predator. The dean of students for the university has been forwarding emails organizing demonstrations (styled “town hall meetings”) to warn of Choudhry’s alleged predatory propensities.
Now, in the wake of Sorrel’s March 2016 civil lawsuit and the ensuing public outcry, the University wants to re-open the case by launching a second administrative investigation to strip Choudhry of his tenure and fire him.
Welcome to the world that trench lawyers have been telling you about, the one that academia has pretended didn’t exist so the mob wouldn’t call you mean names. The time to prevail on the substance was in the first prosecution (yes, it’s a prosecution, because its outcome is punishment). And that’s where due process is needed. How much? As much as is necessary to assure a fair opportunity to challenge the allegations, and even then, it puts the accused at a monumental disadvantage, just as in real court. But without due process, it’s a farce.
And what of this double jeopardy to appease the mob? This is the natural outcome of academia enabling the mob, creating the expectation that every “survivor” deserves to be believed, that every awkward glance is “sexual violence,” that the only outcome that matters is that females feel safe and valued. Academia and OCR created this mob, and now you realize it’s a nightmare.
When it was students’ lives being destroyed, you didn’t care very much. You went along. Even if you realized it was wrong, you didn’t want to risk being called “rape apologist” for standing up to the mob. Now that it’s your friend, you’re willing to take the chance. Welcome to the dark side of reality.
Nobody gives a damn until it touches their life. Now that it has, remember that it’s not just your pal, Choudhry, but every person accused of some campus sexual impropriety. Every one of them needs and deserves due process. The flagrant unfairness of being incapable of confronting accusations is no different for the students than it is for your friend, the former dean.
*See Sasha Volokh’s “n Guilty Men,” the best law review article ever.