Wednesday, May 29, 2013


Two follow-ups on recent posts.

First, an interesting column in the Chronicle from Andrew Beaton, reflecting on the Duke lacrosse team’s recent national championship victory over Syracuse. Speaking to both current coach John Danowski and two of the team’s star players, Beaton learned that from recruiting to current media coverage, the legacy of 2006-7 remains.

“The scandal may never go away,” wrote Beaton, “and it may always be among the first few results for ‘Duke lacrosse’ in a Google search. (Even after Monday’s 16-10 national championship win against Syracuse, it’s in the top three). And it’s a shame that a set of lies, a district attorney’s ambitions and presumptions of guilt have made it that way.”

Current Duke students who solely read the Chronicle must have been puzzled, however, by Beaton’s final sentence. A “set of lies”? A “district attorney’s ambitions”? “Presumption of guilt”—including from dozens of faculty on campus, amplified by a president too cowardly to stand up for due process?

Isn’t this the same paper that only a few months ago informed readers that the legacy of the lacrosse case was “a stifling effect on our administration” leading to “the administration’s ability to comment on Duke’s social culture”? The “enduring narrative” of the case was not, according to the authors of this unsigned editorial, a “presumption of guilt” by those who ran the school, but instead “of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

Perhaps the authors of that unsigned editorial might want to take a look at Beaton’s column. I should note that the column’s titlethat Coach Danowski changed the “meaning” of Duke lacrosse is far more reflective of the “enduring narrative” editorial than of Beaton’s column itself.


Second, regarding the North Carolina “right to counsel” I bloggedabout below. Given the current state of affairs on college campuses, action from state legislatures to ensure due process in campus disciplinary procedures is about the only chance for reform. The likelihood that colleges themselves will enhance due process is about as high as Michelle Bachmann being chosen next year’s commencement speaker at Harvard.

The original House bill could, and should, serve as a model for other states to follow—a clear, unequivocal assertion that accused students have the right to a lawyer. It’s my hope that as the measure moves through the Senate, there will be greater clarity provided to at least one of the House modifications—namely, the provision adding “non-attorney advocate” to the bill. (“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.”)

Since all universities currently ensure “non-attorney advocates”—a toothless position—the bill’s effects would be meaningless. If, however, the bill is clarified to ensure that the student should have the choice between a lawyer and a non-attorney advocate, then the bill’s promise of a right to counsel could be significant indeed.

One other item from the bill, which fortunately was not modified by the House. The bill calls for a “licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.” One key element of the “Dear Colleague” letter (and changes demanded by “activists” at Stanford, Yale, and elsewhere as those schools have modified their campus disciplinary processes) has been significant structural restrictions on the process itself—severe limitations on the ability of accused students (or their “advocates”) to cross-examine witnesses, or to receive evidence in a timely fashion, or to present evidence of their innocence.

A legislative commitment to full participation might remedy some of those problems—but only, again, if the full participation came from an attorney, not a university-approved “non-attorney advocate.”

We’ll see what the Senate does.

Saturday, May 25, 2013

In North Carolina's "Right to Counsel" Bill, Far Less Than Meets the Eye

The “Dear Colleague” letter (about which I’ve frequently written over at MTC) featured a three-pronged assault on the due process rights of college students accused of sexual assault. First, it ordered colleges to adjudicate such matters through a “preponderance of evidence” (50.01%) standard, thereby dramatically increasing the likelihood that innocent students will be branded rapists by their schools. Second, it forced colleges to institute a double jeopardy scheme that allows accusers to appeal not-guilty findings even under the reduced threshold. Finally, it strongly encouraged colleges to deny accused students the right to cross-examine their accusers—even though in claims of acquaintance rape, the accuser might be the only witness against the accused.

As hostile to due process as the “Dear Colleague” scheme is, however, the document at the very least didn’t explicitly deny the right of accused students to be represented by counsel in disciplinary proceedings. A cynic might say the letter didn’t have to issue such a mandate, since most colleges already bar lawyers from their disciplinary processes.

This oversight, however, provides an opening (at least at public universities) for state legislatures to restore some semblance of due process for students accused of sexual misconduct. Nothing in the “Dear Colleague” letter prevents state legislatures from passing laws ordering public universities to let accused students have full, robust legal representation. And given the sudden, bipartisan interest in due process amidst the IRS and AP subpoena “scandals,” the political environment is unusually suitable for politicians to act.

In April, seeking to safeguard student rights on campus, four North Carolina state representatives (Republicans John Bell and Jonathan Jordan, Democrats Rick Glazier and Nathan Baskerville,) served as lead sponsors for a measure called the Students & Administration Equality Act.

The bill contained only one clause, entitled “Student disciplinary proceedings – student’s right to counsel,” and provided a much-needed reform on behalf of due process. It held that “any student enrolled at a constituent institution or student organization at a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution and that wants legal representation may be represented by an attorney during any formal stage of any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the charge of misconduct against the student or student organization.”

The bill was referred to the House Education Committee, where it languished for a month. Last week, it was withdrawn from the committee and referred instead to the Rules Committee, which substantially rewrote the bill. Though still promising a “right to counsel for students and organizations” in disciplinary proceedings, the measure actually does no such thing.

Here’s the new text, with the relevant sections gutting due process in bold:

“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:

(1) If the constituent institution has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.

(2) For any allegation of ‘academic dishonesty’ as defined by the constituent institution.”

The amendments to the bill have so altered the original measure to render it meaningless.

First, the bill no longer provides a “right to counsel,” at least as the word is commonly understood (an attorney). Instead, the bill requires colleges to allow students to be represented by an attorney or by a “non-attorney advocate.” In short, all the bill envisions is codifying the ways in which universities give a phony sense of due process by suggesting that an “advocate” (a faculty member, a fellow student, even a family member) can safeguard a student’s rights even if lawyers are excluded from the disciplinary proceedings. Despite the now-misleading title, no student facing charges before a college disciplinary tribunal in North Carolina will gain the “right to counsel” if the amended bill passes.

Second, even the gutted “right to counsel” doesn’t apply if the school “has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.” This provision, if construed broadly, would seem to exempt every disciplinary proceeding at a North Carolina public university except for one—the University of North Carolina’s recently-adopted sexual misconduct procedure, one of the earliest responses to the “Dear Colleague” letter. (UNC formally set up a two-tier system of campus justice in which students accused of sexual assault would both be judged by a lower standard than students accused of other offenses on campus, and would have their cases heard not by students but by a specially “trained” panel of . . . sensitive . . . administrators and students.)

Even at UNC, however, the law wouldn’t require students accused of sexual misconduct to be represented by a lawyer, only by a “non-attorney advocate.” And that “right” already exists: an accused student receives an “advisor”to assist “with pre-hearing procedures and the presentation of witnesses and evidence at the hearing or at any subsequent proceedings. Only currently enrolled students or employed staff members of the University shall serve as advisors to the parties.” And that “advisor”—or “non-attorney advocate,” in the bill’s language—can’t do much once the hearing begins, since a student accused of sexual assault, or his “advisor,” “shall not have the right to question another party; however, each party may submit proposed questions to the panel for panel members to ask of the other party if the panel members determine, in their sole discretion, that the proposed questions are designed to elicit relevant information.”

To review: the amended bill won’t provide any accused student in North Carolina a right to counsel; it won’t even apply to most disciplinary processes at North Carolina’s public colleges and universities; and it will have no effect on the one procedure (UNC’s new sexual assault standards) to which it clearly would apply.

Last week, the North Carolina House of Representatives passed the bill by a margin of 112-1, with only Wake County Republican Jim Fulghum voting no. The measure currently awaits action in the Senate.

The upper chamber should reject the bill, and if the bill passes, Governor McCrory should veto it. Not only is the measure, as currently constituted, meaningless, a strong case could be made that the bill is harmful, because it creates the false impression that a “right to counsel” exists when, in fact, no such right is present.

Saturday, May 11, 2013

"We Are Not Radicals"

 .  . . writes proud, defiant member of the Group of 88.

In his co-authored op-ed, and after implying that his conduct might somehow be comparable to the brave civil rights activists who participated in the Greensboro sit-ins, Group leader William Chafe runs through a litany of policies that prompted him to violate the law. A couple of the issues that Chafe raises--dealing with efforts of the North Carolina state legislature to restrict the right of predominantly Democratic constituencies (students, minorities) to vote--might rise to the level of potential subjects for civil disobedience, dealing as they do with fundamental rights.

But Chafe comes across as the work of a figure more interested in play-acting as a 1960s radical than in actually influencing policy. He suggests that he was protesting not merely these voting rights issues, but North Carolina's political leadership's decision to reduce taxes on the wealthy. He also decided to break the law because North Carolina leaders made a policy choice that Associate Justice Elena Kagan deemed constitutional and declining federal funds to expand Medicaid. And he believed that he could place himself above the law because he knows better than North Carolina's elected government on whether to make a policy choice that former associate justice David Souter deemed constitutional and imposing some restrictions on abortion. A . . . distinguished . . . professor deems these policy choices to be grounds for civil disobedience?

The Chafe argument, summarized: unless a government elected by a majority of the voters enacts the policy agenda of the minority party (with which he happens to agree), he will engage in civil disobedience.

We live in a representative democracy. The state's Republican governor and GOP-led legislature ran on a platform of lowering taxes on the wealthy. If Chafe considers this policy so unappealing, perhaps he should devote himself to using his way with words to persuade a majority of his state's fellow citizens, rather than resort to breaking the law.

And imagine how Prof. Chafe would have reacted if Tea Party types had engaged in civil disobedience to demand higher taxes on the poor, or had screamed at women trying to access an abortion clinic. Somehow I doubt that he would have compared the Tea Partiers to a modern-day version of the Greensboro Four.

An aside: in what way does Chafe's past status as a president of the Organization of American Historians argue against deeming him a "radical"?

Tuesday, May 07, 2013

More on Penn State & Accountability

I’ve written extensively on the contrasting approaches to accountability between Penn State and Duke. The Penn State trustees, although they remained asleep at the switch for years, at the very least acted aggressively once the Sandusky allegations came to light. In contrast to Duke, which has done everything possible for several years to prevent a full-scale investigation of why the administration and so many “activist” faculty members so badly botched the lacrosse case, Penn State’s trustees gave an outside investigator full access to all university documents, including e-mails, involving the Sandusky cover-up. The resulting Freeh Report, of course, exposed some troubling things about Penn State’s campus culture and past decisionmaking process—but the willingness to commission the report suggested an acceptance of accountability that’s been totally lacking at Duke.

The Freeh Report, however, has produced a ferocious backlash on campus and, to a lesser extent, elsewhere in Pennsylvania. A handful of elected PSU trustees, led by Anthony Lubrano, have challenged the report’s validity, raising dark hints of denial of due process. PSU faculty leaders embarrassed themselves by challenging Freeh’s conclusions while failing to produce even one piece of evidence to corroborate their assertions. The state’s governor, Tom Corbett, initially accepted the Freeh Report, but then backtracked and sued the NCAA. (That Corbett, one of the nation’s most unpopular governors, faces re-election next year appears to have figured into his thinking.) And various state legislators criticized the NCAA for not spending the entire fine to which Penn State’s leadership agreed on matters in Pennsylvania.

The backlash raises some serious questions as to whether Penn State leaders, and the Pennsylvania politicians that they serve, are abandoning their initial, admirable acceptance of accountability for the Sandusky cover-up. This question has resurfaced in a different form in a bill currently before the Pennsylvania state legislature.

The bill seeks to extend the statute of limitations for victims of the Sandusky scandal, so as to allow them to file civil claims against Penn State and Sandusky’s charity organizations. In many states, such measures have generated opposition from the Catholic Church, since they threatened to expand the Church’s legal liability from the sexual abuse scandal. But in past cases, invariably a combination of public outrage, an understanding that many victims of child sexual abuse take years or even decades before coming forward, and a simple desire to do the right thing have led legislatures to extend the time period for filing suits.

Extending the statute of limitations beyond 30-year-olds, of course, poses potentially problematic questions for Penn State. In general, the narrative around the Sandusky scandal has focused on events of 1998 (when a local prosecutor elected not to file charges against Sandusky, after an investigation of which the PSU leadership was aware) and 2001 (when then-graduate assistant saw Sandusky sexually assaulting a boy in the football building’s showers, told Joe Paterno and then two senior administrators, only to see the PSU leadership decline to report the matter to the police).

Given its charge, the Freeh Report focused exclusively on these events and their aftermath. It thus never explored exactly when Sandusky started his pattern of abuse. If, as seems entirely plausible, he was engaging in abuse throughout his time at Penn State, that would mean at least some of his victims might need the law to pass in order to file a claim.

What, then, will Pennsylvania legislators do? Both state politicians and the PSU leadership have repeatedly expressed a willingness to treat all of Sandusky’s victims fairly—which would suggest that the bill should sail through to passage. Yet conceding that Sandusky might well have engaged in abuse throughout his Penn State tenure would undermine all but the most fanatic apologists for the Paterno football program; the (preposterous) claim that Paterno was too old or out-of-touch to effectively move against Sandusky would be entirely untenable as an explanation for any inaction by Paterno in the 1980s.

Far better, from the perspective of any ultra-Penn State loyalists in the legislature, to not look too far back into the past. But if they abandon accountability by declining to support the current legislation, they’ll effectively contribute, in their own way, to the cover-up that brought down the former PSU administration.