'Fully Compliant'

I read with great interest the Oct. 8 article about Princeton’s new sexual-assault discipline policy. Although I am glad to see that my alma mater is doing serious thinking on the subject of how to address campus sexual assault, I fear that this policy review may have overlooked a fundamental question: Why does the University disciplinary committee, an organization designed for censuring undergraduate hijinks and campus pranks, have a role in what should be a matter for law enforcement? In terms of the seriousness of the crime, rape is roughly the equivalent of murder. Nobody is suggesting that university disciplinary committees should be meting out punishment to murderers, so why do we accept it as a matter of course that they are punishing rapists?

Additionally, keeping sexual-assault investigations at the campus level makes the justice system vulnerable to campus pressures; that is one reason why Jerry Sandusky got away with victimizing so many young men for so long, to name just one example. Rape is a vicious act of predation, not a youthful indiscretion. Allowing disciplinary committees to continue in their role as the first line of action against campus sexual assault equates rape to a campus prank in terms of severity, rather than elevating it to the seriousness that it serves.

I recommend that Princeton re-examine its sexual-assault policy again, and this time question the basic premise that the University has any role in sexual-assault discipline other than full cooperation with law enforcement.

Princeton erred grievously by accepting the Department of Education’s Office for Civil Rights (OCR) policy on sexual assault in return for federal government funding for the University (On the Campus, Oct. 8 and Dec. 3). The Obama administration’s policy is blatantly illegal. Because rape and sexual assault are considered criminal acts, every American citizen enjoys the presumption of innocence beyond a reasonable doubt, which rules out any standard of “preponderance of evidence.” The confrontation clause of the Sixth and 14th amendments to the Constitution guarantees that the accused shall enjoy the right to be confronted with the witness against him in clear view, precluding the confidentiality of an accuser. The Fifth Amendment prohibits double jeopardy, where a defendant once proclaimed innocent cannot be retried a second time. This means that complainants cannot appeal a decision that effectively would retry the respondent. Furthermore, Title IX policy itself is discriminatory based on gender, since virtually all the respondents would be male. How can President Eisgruber ’83 address sexual misconduct fairly, given these facts?

The rights of American citizens afforded by the Constitution trump any agreement by OCR and the University, any vote by University faculty, and any interpretation by the current federal administration. There is no heroism here by accusers, no feel-good Title IX media events, and no student should ever feel comfortable accusing a person of a felony. If my son were accused of a sexual assault at Princeton, I would insist upon a jury trial in court, and if acquitted, insist upon litigation against both the complainant and the University, reinforcing the seriousness of trivial accusations. If Princeton is to be a great university in the future, it needs to make principled decisions to protect all the members of its community. It can do much better than this.

Princeton’s new sexual-assault policy (On the Campus, Oct. 8), adopted in response to federal funding-withdrawal threats, is shocking. Since when does Princeton look with favor upon a policy that can ruin a student’s reputation based on a finding that “it is more likely than not” that he did something wrong? Imagine your son being falsely accused of sexually assaulting a female student and you being told that although the facts are murky, he “probably did it” and therefore is deemed guilty under the new standards. Many emotion-laden injustices will be visited upon young men if this new “standard of evidence” isn’t reconsidered and rejected.

The Office for Civil Rights-mandated changes in University sexual-misconduct policies are not all good. Implementation of OCR policies at the University of Michigan caused sexual-misconduct complaints to rise from two and three in 2009 and 2010 to 68 in 2011, and the number continues to climb. If it was too difficult to file a complaint when clear and persuasive evidence was required, then it is now too easy. 

“Preponderance of evidence,” as implemented at Michigan, favors a complainant and discriminates against a respondent because sexual-misconduct complaints are confidential. A respondent has no defense and cannot provide evidence when he or she isn’t allowed to know the complaint. Further, at Michigan, “preponderance of evidence” often is determined by a single professional acting in the combined role of solicitor, prosecutor, investigator, judge, and jury — a professional with little experience in education who is employed, directly or indirectly, to find misconduct.

There is a political element, too, when faculty encourage students to complain about other faculty. Professors are considered to have power over students, mediation is not allowed in sexual-harassment cases, and few professors can afford the OCR-mandated risk that mentoring now entails. We all lose in an environment like this. Management of sexual misconduct is a deeper and more difficult problem than might appear at first sight. Fairness, whatever the cost, is essential to maintain the core educational mission at Princeton and every leading university.

I am writing to say how apt the heading of your recent report on Princeton’s adoption of federally mandated sexual-assault policies was.

“Fully Compliant” is the perfect description of Princeton’s cowardly, sexist, and embarrassing adoption of unconstitutional guidelines under threat of withdrawal of federal funds.

Twenty-eight Harvard Law professors have now shown what a travesty of due process and denial of basic human rights these policies represent, and are calling for Harvard to get rid of them.

Has Princeton no shame? Must Harvard lead?

Once upon a time, our beloved University, in loco parentis, regulated the lives of its young men in terms of the Chapel rule, parietals, and the like. In the present, “modern” era, with gender-neutral dorm rooms and common baths, it strikes me that (for better or worse) society has moved on regarding regulation of individual behavior. Perhaps ancient ecclesiastical tradition encourages the University to maintain its own internal court system, but, apart from matters of academic malfeasance (e.g., cheating on exams, plagiarism, intellectual-property theft), it is not clear to me why we do not employ the criminal and civil systems to handle sexual-misconduct incidents (On the Campus, Oct. 8).

Is it that the University has established the precedent of responsibility for its students’ behavior? Does New Jersey law ascribe to the University, as “innkeeper” of a largely residential student body, responsibility for occurrences in its facilities? We might avoid the complexities of satisfying federal regulations if we simply cede adjudication of sexual-misconduct complaints to better-qualified authorities. I expect that our lawyer brethren can educate us properly on these matters.