When It’s Personal, The Virtues Of Due Process Become Clear

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.

16 thoughts on “When It’s Personal, The Virtues Of Due Process Become Clear

  1. Jonathan Levy

    Thanks for the link to Volokh’s article. Perfronally, I think Llewellyn’s piece on The Canon’s of Construction and Judicial Preference (at least the descriptive part) is the best law review article ever.

  2. Andrew Stallings

    Would you be able to explain to me why a university’s disciplinary procedures should be any different from that conducted by corporate HR? Due process doesn’t exist in corporate HR either, and really, I don’t see why academia should be held to a stricter standard than a corporation. Academia is, in essence, the “education industry” and what happened to Choudhry is really much less of a punishment then what would happen if he worked for IBM or Booz Allen,.

      1. Andrew Stallings

        I’ll assume you are serious. How much would you require for such an explanation? I have no knowledge of the cost of these things.

            1. SHG Post author

              I’m thinking of putting up a sign.

              Answers to Legal Questions: $0.05
              Correct Answers to Legal Questions: $10,000.00
              Correct Answers to Really Stupid Legal Questions: Priceless

          1. Andrew Stallings

            Or you can not, it being your blog, after all. I’m sorry; I guess I didn’t word myself correctly as being serious in my question. I’ll assume you have no interest and/or time in giving an explanation on the difference. That’s fine; I’ll just see if one of the guys in Legal in my office can give me an explanation instead. Thanks anyway.

  3. Wilbur

    The last paragraph of Volokh”s article:
    “The story is told of a Chinese law professor, who listened as a British lawyer explained that Britons were so enlightened that they believed it was better that ninety-nine guilty men go free than that one innocent man be executed. The Chinese professor thought for a second and asked, “Better for whom?”

    I think the correct ratio is 19.3 guilty to one innocent. And the science is settled.

  4. Jim Tyre

    See Sasha Volokh’s “n Guilty Men,” the best law review article ever.

    Oh, please. Aside, The Common Law Origins of the Infield Fly Rule, 123 U.Pa.L.Rev. 1474 (1975).

    PS: There is no law school called Boalt Hall. Some idiot decided that the name didn’t sufficiently relate to the academic institution, so the name was changed, officially, to the University of California at Berkeley School of Law, or something.

  5. Marc not-R

    Mr Hills didn’t want the criminal standard of proof in an administrative hearing five years ago? I had to go to the article where he replied to Mr Berkowitz to see if he understood that preponderance is the standard in almost all administrative proceedings (he did). But it seems to me, as an attorney that does administrative hearings, that all too often this standard is sliding somewhere below preponderance, especially in the light of the OCR guidance and state agency actions (I sense that in many respects criminal law is suffering the same fate with a slow slide towards a clear and convincing standard, but I digress), maybe as low as the probable cause standard. Heck, my caseload would drop 75% if I could convince the Texas Leg. that clear and convincing is the right standard! Fat chance of that happening, though.

    And it is amazing how many people try to do it themselves until they lose their only evidentiary hearing opportunity, then call up and say “save me”! They don’t like it when I tell then they should have called 3 months earlier, before the hearing.

    1. SHG Post author

      You raise an issue that only lawyers could truly hate. The burdens of proof in the hands of children are meaningless. The fight over whether campus adjudications should be preponderance or clear and convincing only matters if the people applying the standard have a clue and aren’t biased from the outset. They don’t and they are. Before a non-captive ALJ, it matters. Before a gender studies or art history prof, not so much.

  6. Ty Henry

    “When they came for the athletes, I said nothing, for I was not an athlete.

    When they came for the frat boys, I said nothing, for I was not a frat boy.

    When they came for the undergrad boys, I said nothing, for I was not an undergrad.

    Now, they come for the academics/profs, and there is no one to speak for me”

    About sums it up.

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