Procedure for Me, But Not for Thee

It’s a bedrock principle of American justice that different rules should apply to different groups of people.  Just because certain people get certain rights doesn’t mean that everyone should get them.  What matters most is what group you belong to and how powerful it is.  In general, the more powerful your group is, and the more able it is to fend for itself, the more protections the law ought to afford it.  To whom much has been given, after all, much can be lost.

If none of that sounds right to you, then congratulations—you passed 5th grade civics.  But I have some bad news: You’re entirely unfit to work at many colleges and universities across the country.

One of the oddities we encounter in our work defending men and women accused of campus sexual assault is that schools often apply different sets of procedural rules to different groups of accused persons.  Many schools have one set of procedural rights that they give to accused students, another set that they give to accused professors, and sometimes even a third that they reserve for non-tenured employees.  And when schools do that, they invariably give more procedural rights to accused faculty members and employees than they do to accused students.

The extent to which the different sets of procedures differ varies a lot by school, but in every case the differences are meaningful.  At some schools, for instance, tenured faculty are assured that at least one other tenured faculty member will serve on any hearing panel that decides their fate—ensuring at least a partial “judgment by their peers” that most accused students no longer enjoy, given that the vast majority of schools bar students from serving on sexual misconduct hearing panels.  At others, faculty are promised an additional level of review, a sort of “second appeal,” before the most serious sanction—dismissal from the school—can be handed down.  And at one school, as recently as a few years ago, claims against faculty had to meet a higher burden of proof (clear and convincing evidence) than claims against students (more likely than not).

What explains that?  We’ve represented a lot of accused faculty members in sexual misconduct cases, and they have an enormous amount at stake.  A professor found responsible by his or her school may never work again; dismissal is effectively a scarlet letter that will follow them everywhere.  It’s hard enough for a student found responsible for sexual assault to transfer to another school, where they are one of thousands, if not tens of thousands, of students.  It’s nearly impossible for a professor to go somewhere else: Faculty hires are always few in nature, and publicized, and heavily scrutinized.

But that doesn’t mean that accused students don’t have an incredible amount at stake, too.  They will see every future career path restricted, and some will be cut off from them altogether.  And no college student is well-equipped to handle a sexual assault allegation.  They are not emotionally mature, they have next to no influence at their schools, and they often lack the means to obtain outside help.  Accused students commonly lose weight, lose sleep, seek professional counseling, and suffer academically. What’s at stake can’t explain, let alone justify, different procedures.  Any school that is equipped to give its professors a given set of procedures is trained and equipped to give those same procedures to students.

The real reason that professors and employees sometimes get more protection than students is entirely practical:  They can organize.  They are repeat players with considerable influence and a common interest.  And that lets them negotiate for, and usually receive, more rights than students have.  Students are transient; they can do none of that very well.

And that’s no basis on which to mete out justice.  Any school that is equipped to provide a more robust set of procedures to one group can apply it to every group.  Anyone whom a school investigates for sexual assault should get the same procedural protections from the school, no matter who they are.  It should be that simple.  On this, schools really don’t have to be smarter than a fifth grader.

June 10, 2019