Cornell's kangaroo court for accused men
Judicial Counselor Report: Cornell "unnecessarily eradicated important rights of the accused"
Posted by William A. Jacobson Thursday, July 28, 2016 at 09:00pm 33 Comments
For several years we have been covering the near elimination of due process rights for men accused of sexual misconduct on campuses.
Universities, compelled by a directive from the Obama Department of Education under threat of loss of federal funding, have combined with toxic radical feminist "rape culture" warriors to create tribunals in which men are presumed guilty in what amount to Kangaroo courts for men on campus.
These campus tribunals have turned our traditional notions of justice around. While we used to hold to a standard that better 10 gulity men go free than 1 innocent man be convicted, now it's Better 10 Innocent Men Suffer, Than 1 Guilty Man Escape.
Prof. KC Johnson of Brooklyn College, who relentlessly documented the injustices in the Duke Lacrosse case, wrote a post recently highlighting a Cornell 2013-2014 Judicial Codes Counselor Report (full embed at bottom of post).
The report reviews cases handled by the JCC brought during that academic year at Cornell University, where I teach, and highlights many of the due process problems. The Report also includes "some observations made during Academic Year2014-2015." This would not be a complete universe of cases, just those handled by JCC, staffed by law students who provide legal assistance to other students.
The main conclusion of the Report is that Cornell's procedures were fundamentally unfair to the accused:
"Overall, Cornell's procedures unfairly disadvantage respondents. The trouble begins with the federally required preponderance standard that schools must use to determine whether Title IX misconduct occurred. In complaints against students, Cornell's choice to employ a single investigator model-in which a JA investigator serves as the functional equivalent of detective, prosecutor, and judge, all in one – means that recommendations are the result of unilateral inquiry by an arguably untrained administrator lacking critical subject-matter expertise. Although final decisions are officially rendered by three-person Review Panels, Panels never experience direct contact with the parties or witnesses and receive only the information the investigator provides. Cornell also unnecessarily eradicated important rights of the accused, far exceeding articulated federal recommendations." [pg. 2]
Prof. Johnson goes into much more detail, Cornell's Year of Sexual Assault Cases:
One of the three due process lawsuits against Cornell, however, has brought to light a more remarkable document. Prepared by Amanda Minikus, Cornell's Judicial Codes Counselor, the document reviewed all sexual assault cases at Cornell during the 2013-2014 academic year….
Minikus' key thesis: "In its efforts to swiftly revise its procedures and crack down on sexual misconduct, Cornell has implemented policy far beyond what is necessary to comply with OCR's guidance and created a process fraught with inequities."
For instance, despite silence on the issue from the Office for Civil Rights, accused students at Cornell are advised they have no right to remain silent. The faculty panel that pronounces final judgment hears only from the investigator, not the accused student. The accused student can have a lawyer, but the lawyer can't actively participate in the disciplinary process. The accused student or his representative can't cross-examine the accuser, even indirectly. The accused student or his representative has no right to the evidence gathered by the single investigator—on grounds that this constitutes "work product." (After complaints, Cornell agreed to provide an "edited" version of this material.)
Johnson goes on to paraphrase some of the specific findings.
Minikus's other main points:
Disparity between treatment of students and of faculty. The report notes that Cornell seems willing to protect the due process rights of faculty accused of sexual misconduct, but not students—a "troubling disparity." Through the 2013-4 academic year, faculty accused of sexual misconduct were adjudicated by the clear and convincing standard. They had access to all exculpatory evidence. They had a right to remain silent. They had a right to be represented by a lawyer throughout the process. They had a right to a full hearing. They had a right to cross-examine all witnesses, including their accuser. Students had none of those rights. Though Minikus was describing the 2013-4 procedures, the disparity remains.
Breadth of what Cornell considers sexual misconduct. For instance, one 2013-2014 case featured a female student who claimed that ten pairs of undergarments were missing, and therefore had been stolen from her room. She informed the Cornell single investigator-adjudicator that she suspected a male student with whom she'd had negative interactions had committed the crime. She had no evidence that he had done so; indeed, it appears she had no evidence that her undergarments had been stolen at all. But Cornell found the male student guilty of sexual misconduct after the single investigator-adjudicator found the accuser's suspicions more credible than the suspected student's denials, even though the university investigation had uncovered no evidence that the accused student had done anything wrong. That finding—which doubtless will be interpreted by future employers as something equivalent to sexual assault—will remain on his transcript for life.
Gender. In all eight sexual assault cases during the 2013-2014 year, the accused student was male. After the sole male staffer was reassigned for unspecified reasons, all investigator-adjudicators were women, overseen by the Judicial Administrator, who also was a woman. The report noted the "troubling" dynamic of all accused students being male and all investigators being female.
Inconsistent procedures. Minikus detected occasions of seeming bias in Cornell's approach—twice, polygraph examinations indicating accused student's truthfulness were deemed inadmissible, on grounds that polygraph results are inadmissible in a criminal proceeding. "Note," the JCC archly observed, "that investigators' sudden reliance on the evidentiary standards to the criminal courts stands in contradistinction to their ordinary, emphatic insistence that [the Cornell policy] is an 'educational' process with relaxed evidentiary standards and without penal goals."
Training. Cornell's Title IX staff receive training from Markel Consulting, whose firm's website states that his career "has been dedicated to pursuing justice for victims of crime." A JCC associate attended the training (information for which is not public on the websites of either Markel or Cornell). The associate found that "the training focused primarily on how a school should proceed after a sexual assault took place. In short, the training assumed a sexual assault occurred." This type of training, the JCC concluded, poorly served Cornell, since "beginning such training with the assumption that every allegation is valid does not train investigators to impartially assess complaints." The JCC asked Cornell to publicize the training that Title IX officers received; Cornell so far hasn't accepted that recommendation.
The Report is below. Much if not most of it deals with non-sexual harassment campus offenses.Here are two additional findings that jumped out at me:
"Clarifying guidance for the imposition of temporary suspension is a primary goal of the JCC Office. Presently, temporary suspension occurs at the whim of single administrator, whose initial decision is not subject to formal review. The JCC believes that the JA's use of this measure is often haphazard and premature. Further, inconsistency in its application is inevitable due to. variable published standards for its use. As it appears in Cornell's sexual assault policy, temporary suspension may be imposed according to a lower standard than in the Code. This fact could encourage administrative policy-shopping where the JA decides how to characterize misconduct and may also desire greater discretion to use interim measures like temporary suspension. Also, these variable standards can result in ridiculous outcomes. For example, since a wide range of misconduct may be addressed under Cornell's sexual harassment policy, its looser standard could permit suspension in cases where alleged behavior is less violent or threatening than other conduct of a non-sexual nature requiring application of the Code." [p. 2-3]
The report also highlighted one absurd case:
"This case is an excel lent example of how the preponderance standard results in arbitrary decisions. The complainant alleged lhat approximately ten undergarments were missing from her room. She suspected that someone stole them. There was no evidence whatsoever to place the respondent (or anyone else for that matter) at the scene of the theft. The investigator based her finding of guilt entirely on the perceived credibility of the parties. The investigator determined that the complainant was the most credible. Because she believed, based on her experience with the respondent, that he might have a motive to steal them and was unable to identify any other possible suspects, the respondent was found guilty. What is curious about this particular case is that, after assessing the credibility of the parties according to an entirely subjective standard, the JA treated the intuition of the most credible party as evidence." [pg 20, fn. 73]
I reached out to Cornell Media relations, Cornell's Title IX office, and the JCC office, asking the following questions:
Do you have any comment in response to this post by Prof. KC Johnson? https://academicwonderland.com/2016/07/25/cornells-year-of-sexual-assault-cases/
Have procedures and safeguards changed with respect to either students or faculty accused of offenses since the 2013-2014 report? Are any changes planned?
Only Media Relations responded as of this writing, stating
I have no information I can offer you on this issue at this time. As soon as new information is available I will make sure it is shared with you.
I know that there is a process underway at Cornell to examine these procedures. Hopefully that process will come to fruition soon. In its vigor to protect female students, the Department of Education and campus administrators at many universities have created a hostile environment for innocent male students, leaving a trail of needlessly ruined lives and lawsuits.
Cornell 2013-2014 Judicial Codes Counselor Report by Legal Insurrection on Scribd
33	33 Comments Campus Sexual Assault, Cornell, Due Process
Campus Sexual Assault, Cornell, Due Process
Old0311 | July 28, 2016 at 9:05 pm
Are dildos selling as fast as guns?
Boogs | July 28, 2016 at 9:46 pm
Only one answer, to this and other problems plaguing academe: eliminate the subsidies. First, no tax-free accumulation of income and capital gain in university endowments over $1 billion. Second, no tax deductibility for contributions to such institutions. Third, no exemption from state and especially, local property taxes. Fourth, if Uncle Sam guarantees student loans then recipient universities should be potentially liable for suits from unskilled, jobless graduates; compelled to disclose the same level of information about their financial position as now required for public companies under the federal securities' acts. I would add the requirement that the percentage of admits who are legacies or children of contributors should also be disclosed.
These subsidies are upper middle class freebies.
Milhouse in reply to Boogs. | July 29, 2016 at 2:38 am
Your answer assumes that the universities are doing this sua sponte, and the government is interested in persuading them to stop. But you have it backwards. The universities are doing this because the government is forcing them. Yes, in this case Cornell has gone further than the government demanded of them; they're trying to stay ahead of the game, so they don't get another "Dear Colleague" letter when the shifting standards at DOE and DOJ overtake them. If the government wanted due process and fairness most universities would be happy to supply it.
No, the answer is legal action in real courts run by real judges and jurors. Action against private institutions for fraud, defamation, emotional distress, and any other torts creative lawyers can apply. Action against public institutions for denial of natural justice. Make them plead force majeure, which will bring the DOE's antics into judicial notice, and enable judges to enjoin the DOE from enforcing its made-up standards that have no basis in any statute.
jdgalt in reply to Milhouse. | July 29, 2016 at 4:33 pm
The DOE's "Dear Colleague" letter is not a law or regulation (and in fact may not be legal, but that question has yet to be addressed by the federal courts). It is merely an informal *condition on federal subsidies.* Any college or university can exempt itself from the requirements the letter imposes merely by refusing federal funds, as Hillsdale College has done.
mzk in reply to jdgalt. | August 3, 2016 at 2:03 pm
"By merely refusing federal funds". Now that's funny!
legacyrepublican | July 28, 2016 at 10:03 pm
Simple solution. Only have sex with women in blue dresses. The elite will always give you a pass if she was wearing a blue dress.
Arminius in reply to legacyrepublican. | July 29, 2016 at 12:05 am
Simple solution. Vegas.
In all seriousness, that will put an end to this BS quicker than anything. When no guy will touch a college girl with his third cousin's penis. It's just easier and less complicated to fly out to the Bunny Ranch. And probably cheaper if you just stop dating.
I bet the girls would put an end to this Title IX monstrosity if it meant only a few pathetic losers would give them the time of day.
And no I'm not advocating a hook-up culture. But I'm told that's the only thing possible because boys will be trans, or something. Heaven forbid abstinence catches on.
iconotastic in reply to Arminius. | July 29, 2016 at 12:58 am
Sadly, as the "stolen" underwear example shows, staying away from the pretty little liars does nothing to guarantee that a male student won't be convicted by these kangaroo courts.
Milhouse in reply to iconotastic. | July 29, 2016 at 2:40 am
That goes all the way back to Joseph.
SDN in reply to iconotastic. | July 29, 2016 at 1:50 pm
This will stop happening when the pretty little liars come to pretty messy ends. I mean, she's already screwed up the rest of your life. How would killing her make it worse? Think of it as a service to the other guys she won't be able to ruin.
Incentives matter.
c0cac0la in reply to SDN. | August 1, 2016 at 10:37 pm
This would only serve to galvanize the feminists to enact and push for even more draconian measures to thwart said 'rape culture'. The feminist aren't afraid of western men, they have the upper hand right now. A few revenges won't cause much of a shift in their thinking.
Daiwa | July 28, 2016 at 10:18 pm
My advice to young men: Go to a private college that doesn't accept Federal funds.
Neo in reply to Daiwa. | July 28, 2016 at 11:08 pm
Keep your zipper up and your wick dry.
mzk in reply to Neo. | August 3, 2016 at 2:16 pm
It didn't help him. It would have to include, "don't argue with a female student and give in to her every whim".
How about going back to single-sex colleges? That's the only thing, except a non-feminist-fanatic press, that would make things relatively safe. (I went to one.) You still have to worry about faculty.
jdgalt in reply to Daiwa. | July 29, 2016 at 4:36 pm
Is there any other than Hillsdale?
mzk in reply to Daiwa. | August 3, 2016 at 2:08 pm
That is basically impossible because it includes even student loans, I believe. And there are still Title IX restrictions. A few wealthy colleges like Hillsdale can do it, but it would doom everyone else. My alma mater is basically a religious unversity, more so than most, but it is officially non-sectarian for this reason.
David Breznick | July 28, 2016 at 10:25 pm
If I were in college now, I would insist upon both parties executing a mutual exculpatory agreement complete with nondisclosure, hold harmless and indemnification clauses. What would the consideration be for such a contract? The sexual encounter.
The only question left to resolve is, what would be the liquidated damages?
Milhouse in reply to David Breznick. | July 29, 2016 at 2:45 am
Tht won't protect you from people you didn't have sex with, and therefore didn't sign any contract. Or from people who will take your very insistence on the contract as a form of sexual harassment.
David Breznick in reply to Milhouse. | July 30, 2016 at 11:00 am
If even truly abstinent men are vulnerable to pretty little liars, then how to protect one's self? Hidden "dorm cams"?
mzk in reply to David Breznick. | August 3, 2016 at 2:13 pm
In other words, prostitution?
Ragspierre | July 28, 2016 at 10:48 pm
I'm so old that I remember when conservative scolds were going to put the kibosh on sex.
What's funny is there's a Collectivist idiot posting here these days who insists the opposition to abortion on demand is really about preventing sex.
dawadu | July 28, 2016 at 11:03 pm
Dave Chappelle is a true psychic
https://www.youtube.com/watch?v=Jo4568PIRnk
this skit aired in 2004
Neo | July 28, 2016 at 11:10 pm
I must say that there has always been a dynamic that many young ladies go to these schools in the hope of finding the son of a "Sugar Daddy".
These types of proceedings are most definitely making their efforts much harder. I'm sure, someday there will be a lawsuit.
Xenomethean | July 28, 2016 at 11:34 pm
Abstinence and waiting till marriage to have sex is still able to prevent not just "unexpected" pregnancies but get to know who you are going to stick it to or receive from. And with all this rape culture not just damaging real rape victim, it will cause men to become weary of every woman they come in contact with…
Real rape changes lives…
DINORightMarie | July 28, 2016 at 11:37 pm
You call them Kangaroo Courts.
I call them the 21st Century Inquisition.
No defense. Guilty until proven innocent. Can't prove innocence – no defense is allowed.
Glad you've been fighting this good fight. Thank you – and, for all the sons, and mothers of sons, in college today – 1000 times, thank you.
herm2416 in reply to DINORightMarie. | July 29, 2016 at 10:59 am
This current way of thinking on campus was highly visible at our son's college. He just graduated. He said he is excited to date now–too afraid to while he was in school. Lots of female friends, but was absolutely not willing to date while he was there.
jdgalt in reply to DINORightMarie. | July 29, 2016 at 4:41 pm
A better parallel might be the Law of 22 Prairial, from the French Reign of Terror.
About the only thing the French law had that this one doesn't (yet) is that if an accused was found innocent, the court was required to keep him in custody until the not-guilty verdict was approved by the Committee of Public Safety — and if the committee did not approve, they had to try him again. I'll bet that's in the next version of the "Dear Colleague" letter.
n.n | July 29, 2016 at 12:33 am
"Baby" trials. Not to be confused with baby trials (or rites).
TheFineReport.com | July 29, 2016 at 12:53 am
Sue under federal civil rights statutes.
tphillip | July 29, 2016 at 6:09 am
Since Scribd wants money to download the paper, where can one get a download of this document outside of Scribd?
dmacleo in reply to tphillip. | July 29, 2016 at 12:58 pm
can create account for free there, I have one.
ChicagoLand | July 29, 2016 at 2:57 pm
How does Cornell treat men who think they are women. I would guess that they get the same rights as women. Cornell doesn't want to be transphobic (perish the thought). Thus, all men should identify as women. Then there will be equality between the sexes and we can do away with the Star Chamber.
CV60 | July 30, 2016 at 8:10 am
Cornell has reached the point where the accused in their disciplinary hearings have fewer protections than those at the Salem Witch Trials. According to:
http://law2.umkc.edu/faculty/projects/ftrials/salem/salemprocedure.HTM the witch trial consisted of the following phases:
1. The afflicted person makes a complaint to the Magistrate about a suspected witch. The complaint is sometimes made through a third person.
2. The Magistrate issues a warrant for the arrest of the accused person.
3. The accused person is taken into custody and examined by two or more Magistrates. If, after listening to testimony, the Magistrate believes that the accused person is probably guilty, the accused is sent to jail for possible reexamination and to await trial.
4. The case is presented to the Grand Jury. Depositions relating to the guilt or innocence of the accused are entered into evidence.
5. If the accused is indicted by the Grand Jury, he or she is tried before the Court of Oyer and Terminer. A jury, instructed by the Court, decides the defendant's guilt.
6. The convicted defendant receives his or her sentence from the Court. In each case at Salem, the convicted defendant was sentenced to be hanged on a specified date.
7. The Sheriff and his deputies carry out the sentence of death on the specified date.
In the Salem trials, the accused appeared before several independent bodies (the magistrates, Grand Jury and Trial Court with Jury). Each body had two or more persons as the trier of fact.
According to http://www.legendsofamerica.com/ma-salemcourt.html, the use of "Spectral Evidence" was allowed at the witch trials. This evidence is "a form of evidence based upon dreams and visions." In my opinion, this is the legally similar to basing a conviction on the opinion that a quantity of underwear was taken by someone. Arguably, the use of spectral evidence was superior in protectinge the rights of an individual, as magistrates relied on a written standard of evidence, a 60-page booklet entitled A "Tryal of Witches," which at least offered a series of tests to evaluate the evidence. While the tests were completely bogus, at least it was a systematic attempt to determine the truth, as opposed to the investigator at Cornell who based her finding of guilt entirely on entirely subjective determination of the perceived credibility of the parties.