Over at Minding the Campus, I’ve analyzed two federal
lawsuits filed by male students found culpable of sexual assault after college
procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due
process. Today is the deadline for the defendants in the first suit, filed
by Brian Harris
and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket,
filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You
can read the filing here
I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)
Rucket does not deny that Harris’ complaint accurately
described the (wildly tilted) judicial “process” that St. Joe’s employs, which is
“based on guidance from
the United States Department of Education, Office for Civil Rights (‘OCR’).”
(This guidance, of course, came from the 2011 “Dear Colleague” letter, which
asserted that federal law requires universities to change their procedures in
various ways to make it easier to find students culpable of committing sexual
assault.) Rucket concedes
that St. Joe’s policies prohibited Harris, like all accused students,
from having an attorney represent him at the disciplinary hearing, or attend
the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St.
Joe’s has structured a procedure in which“[c]ivil or criminal rules of procedure and evidence do not
apply,” while allowing the school to consider hearsay.
But according to Rucket’s filing, these are all unobjectionable
things, beyond the scope of the federal courts to review. It’s quite remarkable
to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website
he has been every year since 2010—celebrating the fairness of a process in
which the accused is denied the right to counsel.
Intriguingly, seeking to protect
Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial
proceedings . . . include school administrative hearings and statements made
that lead to such hearings.” In other words: the St. Joe’s disciplinary
tribunal should be viewed as “quasi-judicial,” even though it denies accused
students the right to counsel, doesn’t guarantee them the right to cross-examine
their accuser, doesn’t follow civil or criminal rules or procedure, and allows
Rucket argues that Harris has no legal claim to challenge
the judgments made by St. Joe’s, no matter how unfair the university’s procedures.
“Harris is attempting
improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris
sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why?
In part, because “there is a presumption of fairness in administrative
proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect
an assertion in the St. Joe’s handbook that “[s]ubsequent reviewers shall not determine anew whether there was a
Community Standards violation.” How convenient as a way to
shield any university
from challenges to potentially unconstitutional behavior.
This line of argument, if upheld by the court, would render beyond
judicial review the assault on due process for all college students accused of
sexual assault, and Rucket asserts as much. At least with regard to students at
private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore
been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that
decision.” The power this line of interpretation gives to college disciplinary
processes is extraordinary: once a private college brands a student a rapist,
no matter how unfair the process the college utilizes, the student can never
challenge the finding, as long as the college followed whatever unfair
procedures it utilizes in sexual assault cases.
Absurdly, Rucket claims that the power he gives to
the St. Joe’s process to avoid court challenge is equal opportunity: If, he
notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she
had then filed
“lawsuit against Harris and SJU, Harris certainly would be making this exact
same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this
claim will certainly come as news to the anti-due process “activists” glowingly
profiled in the New York Times
Higher Ed’s Allie Grasgreen
have urged federal intervention to effectively relitigate a variety of campus
decisions they opposed. Second: as Rucket well knows, even if Harris had been
cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris
then could have been tried and, if convicted, sued.
In any event, the filing notes, even without the specific
wording in the St. Joe’s handbook, Harris would have no case. Before choosing
to attend St. Joe’s, Harris knew (or should have known) the university’s
procedures for handling sexual assaults. Courts, Rucket suggests, can’t now
intervene. (Oddly, the only two cases that Rucket cites to bolster his point
come from Pennsylvania state courts; he doesn’t explain why these
decisions should be treated as precedential in a federal lawsuit.) If Harris
didn’t want to subject himself to the anti-due process approach used in his
case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear
Colleague” letter applies to virtually every university in the country, under
Rucket’s viewpoint, the only realistic choice for a male student who wants to
ensure that he has due process if accused of sexual assault would be not to
attend college at all.
Finally, Rucket challenges Harris’ claim that he lacked an
opportunity to cross-examine Horst, but, in any case, deems the matter
irrelevant—in part because St. Joe’s doesn’t promise such a right and in part
because the “Dear Colleague” letter “strongly” discourages granting such a right.
To the best of my knowledge, this is the first time perhaps the most
objectionable aspect of the “Dear Colleague” letter—its urging schools to set
up procedures that deny an accused student the right to confront his accuser—has
been cited, positively, in a legal filing.
Beyond legal arguments, the filing also provides Horst’s
version of the evening in question, in which she alleges that she was assaulted
while incapacitated. Rucket’s writings, however, corroborate several points
from Harris’ filing, chiefly that:
- Horst asked Harris to come to her dorm room and spend
- After the alleged assault (which Harris maintains was
consensual intercourse), Horst left her room to go to the bathroom, but then
returned to her room voluntarily, where she and Harris then spent the night;
- Horst did not seek a medical examination after the incident;
- Horst did not report the incident to police.
The filing describes Horst as “obviously intoxicated” on the
evening in question. But since she didn’t go to the police or seek a medical
exam, there’s no way to verify this claim.
Rucket does challenge the version of events presented in
Harris’ complaint in one significant way. While he concedes that Horst invited
Harris to come to her room for “cuddling” and to spend the night, according to the
filing, this invitation had no sexual connotation.
Two final notes: (1) This is not the lacrosse case, in which
overwhelming and unimpeachable evidence of actual innocence existed. Instead,
the Harris case is an excellent demonstration of how due process-unfriendly
college procedures—coupled with the newly-mandated preponderance-of-evidence
(50.01%) standard—all but ensure that college structures can’t discover the
truth in close or even somewhat close cases. And in a campus environment that’s
overwhelmingly favorable ideologically to accusers, this is a dangerous thing.
(2) In his brief, Rucket asserts that Harris “was found
guilty of (1) sexual assault
.” [emphasis in original] Technically, colleges
and universities can’t find anyone
of sexual assault”: only the criminal justice process can do so. But in the
real world, that’s a distinction that’s easily elided, since the stigma of
being branded a rapist comes just as easily from a college process as from a
jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the
result of the St. Joe’s disciplinary process with that of a criminal trial illustrates
why universities, when they consider issues that also qualify as criminal matters, need to provide due
process to accused students. And if federal courts are the only mechanism for
forcing universities to do so, then so be it.