Short Take: When Fairness Is A “Compromise”

It says so right in the headline, which may not have been written by the author but reveals much about the perspective:

UConn, in a compromise, will give a student it suspended in a sexual misconduct case a chance to defend himself

How nice of UConn to “compromise” by giving the male student a chance to defend himself.

In a compromise filed in U.S. District Court, the university agreed to allow the male student, identified in court as John Doe, to submit to its disciplinary process a second time, but unlike the first time, present a defense. The agreement applies only to this case.

To call it a “compromise” is somewhat inaccurate. UConn settled a case by agreeing to do what it failed to do and should have done in the first place. That it only agreed to do so after District Judge Michael Shea granted the student a TRO and made it overwhelmingly clear that UConn was not going to be offered any cookies by the court for its handling of the affair. In other words, UConn only got reasonable after it was left with no other choice.

And so UConn settled by agreeing to give the male student a “chance” to defend. Quite the compromise.

“UConn agreed to a process that is much more likely to result in a fair hearing for John Doe,” said Doe’s lawyer, Michael Thad Allen of Waterford. “It is just a shame that John Doe had to go to court to get it. Every student should have the right to present witnesses or question witnesses or to see all the evidence. Every student should have the right to have UConn follow its own rules. Every student should get a meaningful review of the single investigator. When faced with a court order UConn was willing to implement standards of fairness that I hope it will also implement in general, not just as a one-off remedy for John Doe.”

Without question, this is a big win for the male student. Without a doubt, this is a huge loss for UConn. Certainly, it’s a condemnation of a process that denied an accused the “chance” to defend himself. Clearly, it’s outrageous that it would take a federal lawsuit to convince UConn to “compromise” by allowing the student to have that “chance.”

And yet, will this change enough to make this “chance” meaningful, whether for the male student at issue or any other accused? Will the student be allowed to be represented by counsel, competent to amass evidence in his defense, to examine witnesses against him, to argue how that evidence should be considered?

Will this “chance” mean other students aren’t presumed guilty by the single investigator who plays judge, jury and executioner, schooled in the ‘believe the woman” Catch-22 of trauma informed rationalizations of why everything proves guilt, no matter what? Will the decision-makers suddenly appreciate credibility, materiality, relevance and, dare I say it, the burden of proof?

What all of this has accomplished, at great pain and expense, is nothing more than the mere opportunity to participate in a process giving only the most superficial appearance of a “chance’ to defend himself. If the decision-makers are determined to hold the male student responsible, he can go through all the motions, present a brilliant defense, prove his innocence even, and still lose. If that’s the outcome they want to achieve, that’s the outcome they will achieve.

The “compromise” as of now is to give the male student the “chance” to defend himself. That’s merely the first step in the process. The next is that the process will fairly and impartially decide whether the accusation against him is valid and proven by a preponderance of the evidence. UConn may have compromised on the former, to let the male students enjoy some of the process that would enable him to have a “chance,” but whether he can get a fair outcome remains to be seen.

11 thoughts on “Short Take: When Fairness Is A “Compromise”

        1. L. Phillips

          Depends. Went through a spate of drunk/drugged individuals passing out on active railroad tracks several years ago. That ritual has a fairly abrupt and foreseeable ending.

          To the point, I will be there dancing with you. First grandkid is off to college this fall. Grandpa is underwriting that venture so exercised the “golden rule” and convinced him that a conservative and religious-based institution would serve his needs. My little contribution to the cartel’s downfall.

  1. grant

    All you have to do is properly document your desired (foreordained) conclusion.

    As anyone who’s won an appeal that was remanded for a hearing with the same judge has told me.

  2. Derek Wilson

    I don’t know the plaintiff’s circumstances, but it doesn’t sound like a great outcome to allow UConn another bite of the apple, does it? Given the judge’s skepticism of UConn I would have expected something better for plaintiff, no?

  3. John

    “If that’s the outcome they want to achieve, that’s the outcome they will achieve.”

    You hit on a point here that is often lost in the due process debate (although you’ve previously written about procedural vs. substantive due process). In many cases, the school’s errors or overt railroading are what ultimately save the accused student in litigation – or at least save what can be salvaged, at that point. Competent investigators (especially outsourced attorneys) can be the most dangerous investigators, because they know how to dot their I’s, cross their T’s, and cover every vulnerability before rendering their kangaroo findings. As you know, the burden for an accused student to challenge a finding without procedural error is nearly impossible to overcome.

    I don’t know what the answer is, but think the underlying bias deserves at least as much attention as procedural due process.

    1. SHG Post author

      Procedural failures are easier to prove than inherent bias. But assuming we reach the point of achieving minimal procedural due process, we’re then going to have to face up to the lack of substantive due process. With all the screaming about procedure at the moment, few have recognized that it’s not enough to fix the problem.

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