It’s not as if the notion of “due process” is a huge legal mystery, given that it’s been the subject of a good deal of discussion over the past couple centuries. And yet, the words haven’t made their way to North Carolina, apparently.
Adrienne Allison, the UNC director of Title IX Compliance, said due process in Title IX investigations is about ensuring equal treatment to both the responding and reporting party during University procedures.
It’s not that Allison isn’t a lawyer, so one would expect her to know better and not say something so bizarrely wrong. Then again, she attended law school in North Carolina, graduating in 2005, so it may be unfair to hold her to the standards of legal knowledge applicable to lawyers elsewhere. Or perhaps she just doesn’t like the way due process is defined by law, and has chosen to define it in her own, special, Title IX way.
There is nothing, nothing whatsoever, about due process that involves “ensuring equal treatment to both the responding and reporting party.” Whether an accuser should be afforded any rights whatsoever is an interesting, but wholly irrelevant, question to what constitutes due process. Due process is the procedure by which an accused is afforded the opportunity to defend himself against accusations. What those procedures should be is a hotly contested issue; parity between accuser and accused has nothing to do with anything.
“For us, maintaining a fair and equitable procedure is essential to the integrity of our process,” Allison said.
“Fair” is certainly an appropriate word to use, but offers nothing of substance as to what “fair” means. However, “equitable” has nothing to do with due process. Worse still, “for us” suggests that UNC gets to create its own flavor of due process, as if the laws of gravity don’t apply in North Carolina if they choose not to have them apply “for us.”
But what would someone whose world isn’t dedicated to redefining due process say?
Because Title IX investigations vary from college to college, due process rights can vary as well. As long as the procedures are applied equitably to both parties, it is considered due process, said Shan Wu, a former federal sex crimes prosecutor with a focus on student defense, who is now in private practice in Washington
Certainly a former federal sex crimes prosecutor would know, putting aside that sex crimes aren’t prosecuted federally, making this description singularly peculiar. Except this, like Allison’s deflection, is facially nonsensical. First, due process doesn’t change from college to college. Due process is a legal concept, not a gift from Title IX administrators that they can give or withhold according to how they feel about it.
More importantly, if Shan Wu actually said what’s attributed to him, he should have his ticket pulled. But note that the words aren’t a quote, but rather the interpretation of the reporter. And this becomes clearer further down in the article.
Wu said the individuals involved in investigating or deciding Title IX cases at colleges often lack sexual assault or legal training.
“The process you get is going to be very much dependent on who’s able to apply it, and what kind of skills and training they have,” Wu said.
This is correct, and a critical observation given that process is only as good as the people engaged in providing it. Yet the reporter then goes on to recharacterize Wu’s words.
Wu said he doesn’t usually see violations of due process in Title IX investigations. Rather, he believes the problem lies in the inconsistent quality of investigations.
As Wu defends accused students, according to his firm bio, could he possibly have said he doesn’t usually see due process violations so where so many else, most notably well over 100 federal judges, seem to see them so clearly?
“It may technically be due process, meaning you’re giving each side the same benefits, same rights, but in terms of the quality, it’s not going to be at all comparable to the court proceedings and not comparable either to the professionalism that a sex crimes detective will bring to it,” Wu said.
The language is quoted this time. This isn’t “technically” due process. This isn’t due process at all. Perhaps the quote is off, or somehow came in response to some awkward question that gives rise to an utterly bizarre quote, but either way. this is dangerously wrong. And yet, it gets worse.
One way universities deal with a lack of legal training is lowering the burden of proof to the “preponderance of evidence” standard to determine if a student will be found responsible of sexual misconduct.
A way to fix the incompetence of colleges to deal with sex adjudication is to lower the burden of proof. If ever there was a statement that revealed the purpose as guaranteeing the accused lose, this is it. Yet, this apparently is what constitutes due process for Tar Heels. Whether Shan Wu approves isn’t entirely clear, but surely looks to be the case.