Short Take: “This Is Not Court”

On this, Laura Dunn is absolutely right. Dunn is a lawyer and executive director of SurvJustice, a “survivor legal advocacy group.” Her job as ED isn’t to be fair, or even right, but to do everything in her power to further the goals of the organization. And so she tried:

Dunn criticized other FIRE proposals, such as the “clearly stated presumption of innocence.”

“A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn wrote in an email. “No presumption should be made either way, and schools should engage in an inquisitorial process to determine the truth rather than artificially favor the accused going into it.”

Dunn also wrote that she “100 percent” disagreed with a student’s right to have an attorney present.

“This is not court,” she wrote.

At first blush, this sounds absolutely outrageous, but squint a little and maybe she’s got a point. College tribunals are not a court proceeding, but an administrative proceeding. If they’re subject to federal law, as most are, then they must provide minimal due process as necessitated by the circumstances of the case before them. This is about as vague as it gets.

For most, the notion that there should be no presumption of innocence for an accused is facially absurd, but then, the presumption applies in criminal prosecutions. This isn’t a prosecution, not because the determination doesn’t have all the attributes of a prosecution with essentially none of the protections, but because it’s a college tribunal employing administrative law to reach its verdict. This is not court.

Does the presumption of innocence favor the accused? Absolutely. It puts the burden on the accuser to prove by a preponderance of the evidence, another highly controversial dictate, that the conduct complained of occurred. Dunn’s point here is that in a usual non-criminal proceeding, neither side comes in with the benefit of the presumption. There is still a burden of proof on the party seeking a remedy, but the sides are otherwise on equal footing. In a criminal proceeding, the Constitution imposes the presumption, which allows the accused to remain silent and compels his accuser to prove his guilt.

And that’s the problem. The impact of a few “trained” humanities profs concluding that a guy is a rapist is, without question, punitive. He loses his tuition for the years spent in college, plus his opportunity costs. He will be officially marked a sex offender on his transcript, precluding his going elsewhere to complete his education. The years of his life dedicated to his future will be rendered worthless. No, he won’t be imprisoned, but the punitive costs will be huge, possibly far higher than a criminal judge could impose.

Dunn’s premise relies on the assumption that Title IX mandates that colleges engage in this exercise of protecting students from sexual assault. There is a strong emotional appeal to this assumption, and under the dictates of the Lhamon Office of Civil Rights regimen, there was putative support for the assumption. Upon that foundation was built a system of adjudication that was barren of due process. Advocates have tried to tweak it around the edges for years now, but it was a tepid effort.

There is a foundational problem that Dunn grasps and too many on the due process side refuse to recognize. This is not court. And the response to Dunn’s fully accurate assertion is that people’s lives should not be ruined except by a court. This is not court. It should be. If reason prevails, this will be the means by which the very serious offense, and accusation, of sexual assault is determined for everyone, college students included.

26 thoughts on “Short Take: “This Is Not Court”

  1. B. McLeod

    I’m sure the notion that “no presumption should be made either way” is, for her, a magnanimous concession.

  2. PseudonymousKid

    Dear Papa,

    More inquisitions are just what we need. It’s odd that there’s people who want to be executioners, but I for one would line up for a job with a title of “Inquisitor.” It just sounds so cool. Though Ms. Dunn probably wouldn’t want any stinking lawyers around messing up her kangaroo not courts. While we’re at it, we should totally pay the inquisitors based on the number of rapists they identify. That isn’t a recipe for further disaster at all. Hey we’re in administrative law land where the rules apply only kind of, so let’s be creative with our “solutions.”

    We aren’t going to have the accused go first any time soon, are we? That’s just not how it works. It’d just be weird.


    1. SHG Post author

      This is why your mother wanted you to study French. The Palais de Justice is lovely this time of year and always has an opening for a Grand Inquisitor. Then we could come visit.

  3. Loki

    Curious the chances of winning a defamation suit against a college, In response to flagging the transcript when transferring to other schools.

  4. Edward

    ““A presumption of innocence advantages the accused only, and Title IX requires equity,” Dunn wrote in an email.”

    You hear the same thing from a lot groups these days demanding equity rather than equality.

  5. Boffin

    A college is a private club, and can choose who they want around, and who they want to boot out. And they can do that in any damn way they want to do it.

    The “victim” of their stupid inquisitorial witch hunt should just go somewhere else and get on with life.

      1. Boffin

        Sure, I get it. But if it was, and they could, and it did, things would be better, and we wouldn’t be having such a silly controversy.

        It was a political choice to go down this road, and it can be changed.

        1. SHG Post author

          It’s not silly to the kids getting screwed. More importantly, a little further down this road and it will be your ass and mine that gets burned. Politics can be shitty, but that’s why we have laws too.

        2. Sacho

          Let’s make colleges great again! They’ll be private clubs, and they’ll advertise up front that they’ll have sexual assault “investigations” as part of their reasons for dismissal. People can make an informed decision whether to participate in them – yay free markets!

          The exasperated population might find themselves not willing to enter such a college at all, at which point they might band together(using something called a “government”) and decide that they need publicly available institutions which grant access to education, since that’s pretty much the most important thing next to health for modern life. They might call these new institutions “universities”, as a way to signal that they should provide education to “the whole”, rather than the private club colleges.

          Man, wouldn’t that be a world significantly different and better than today’s.

    1. Dan

      If you were speaking only of private colleges which took no federal funds, you might be right. But since the number of such colleges closely approximates zero, you aren’t.

  6. MichaelW

    Headline: Laura Dunn Says Rape Victims Should Not Be Believed.

    Says “No presumption should be made either way”

    In other news, Man Bites Dog.

  7. kemn

    I don’t understand why someone hasn’t taken a college to court for violating Title IX after being dragged through one of these kangaroo trials (errr…inquisitions).

    I mean, the accused isn’t getting treated fairly, and strangely enough, it’s always a guy. Or is it that women can’t sexually harass someone? Or assault or whatever the term is.

    I really hope all this crap blows over by the time my daughter is ready for college.

    I’m too old for this And I think that’s the point

    1. SHG Post author

      It’s happening. Andrew Miltenberg is going after OCR. Thus far, there are 61 federal court decisions against colleges for denial of due process, but schools are still more afraid of losing federal funding from OCR (and the bad press by the sad feminists) than they are of law suits.

      But suits take time, a long time, and a lot of damage continues to be done in the meantime.

      1. kemn

        What’s the phrase Ken White uses? “The wheels of justice grind slowly”.

        I’m just frustrated by the damage being done now as this misguided, misbegotten, misanthropic, misery is imposed on students now…

  8. Mark M.

    Curious, I watched the first 2:24 of the Insane Clown Posse, and the entirety of the chick (he said “chick” ?!) simulating doggy analingus. I don’t feel I got my money’s worth; but I suspect another issue was at play, as you did “one up” Mr. Barlycorn.

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