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Op-ed: Let’s talk about due process after Title Mine

Victor Wang | Law School Class of 2018

Due process is not a code word for the patriarchy or white supremacy. It is not for wrongdoers to get away with hurting others, or a shield for the privileged. Rather, due process protects every student at Washington University. And whenever due process is compromised, the brunt of the harm always befalls those who are already most vulnerable.

Being an immigrant and a member of an ethnic minority, I am inclined to pay extra attention to any potential due process infringement. Sadly, Wash. U. is notorious for its poor commitment to due process. According to a 2017 study by the Foundation for Individual Rights in Education (FIRE), Wash. U. scored a zero out of 20 on 10 areas of campus disciplinary due process—the lowest score received among all top 50 universities in the country.

With respect to sexual assault, some people mistakenly believe that due process is intended to filter out accusers who are “liars.” But since false accusations are rare and nobody wants to victim-blame, due process becomes at best superfluous, and at worst a tool of oppression.

However, the truth is that when a claim fails to prevail after adequate process, it simply means is that there was not enough evidence to overcome the burden of proof needed to punish a student. It is neither an attack on the validity of the claimant’s experience, nor an accusation that the claimant had told untruths.

Not infrequently, two people can give conflicting accounts when both sincerely believe that they are telling the truth. People may perceive and remember events differently, especially when alcohol is involved. Even when they agree on the details of an occurrence, they may disagree on how university rules should apply. We need to be careful not to ascribe malice and deceit to what may be an honest disagreement.

Considering Wash. U.’s already poor record, when we support the Title Mine demands, we must be conscious of the movement’s potential, unintended consequences on due process.

For example, although survivors’ may prefer swift and far-reaching no-contact orders against their respondents, such preventative measures by the administration risk being so burdensome as to become punishment in themselves. And punishment before any finding of wrongdoing violates the principle of due process.

The practical and psychological burdens of a no-contact order go beyond mere inconvenience. It stigmatizes the restrained students and cuts off their social support. How do you explain to your peers why you suddenly disappeared, without revealing any confidential information about you or your claimant? It is not unheard of for students to be driven deep into depression and suicidal thoughts by such an order. The academic and mental damages remain after—and regardless of the outcome of—the adjudication.

Ultimately, instead of seeing campus due process as protection for the accused from the accuser, we should properly see it as protection for both parties against the University.

Wash. U. is not a neutral third-party. The administration, like any business entity, has incentives to avoid litigation and bad publicity. Such motivations could potentially conflict with the objective of a fair adjudication. Therefore, a commitment to due process serves to prevent the administration from treating unfairly any student who has relatively less money, support, legal sophistication and emotional reserves to sue or to “make a scene.”

In that sense, campus due process secures the educational rights of the most vulnerable and underprivileged students of our community—a purpose wholly compatible with that of Title IX.

For more information on due process and minority students, see “The Question of Race in Campus Sexual-Assault Cases” by Emily Yoffe for The Atlantic, Sept. 11, 2017.

  • Bonnie Castleman

    Due process is absolutely vital, and no contact orders don’t violate due process. Protection for victims of crimes (or in this case, code of conduct violations) are pretty standard – a no contact order is a protection for the complainant, not a punishment for the respondent. Generally, no contact orders do end up affecting the lives of both parties, not uniformly harming the respondent before an adjudication has been made. I think there might be some confusion here over the difference between a no contact order and an order of protection – no contact orders really aren’t very far reaching. Also, whether or not there was “malice or deceit” involved in a sexual assault isn’t relevant. The USCC (what is used to judge Title IX cases) does not define consent to sexual activity by whether or not the people involved are malicious, but by whether or not they consent. I get some of these points, but the application to Title Mine seems a little :/ to me.

    • Victor Wang

      Hi Bonnie, thank you for your comment. No contact orders imposed by the university don’t necessarily violate due process, but they sometimes do. When an order merely forbids a student from calling the complainant or showing up at their door, there is no due process concern. However, if the order requires the student to withdraw from a class or certain student group, or even to stay off campus except when attending classes, it would be contrary to the spirit of due process.

      Students come to Wash U expecting to participate in extracurricular activities and to enjoy the university’s amenities. Denying those privileges is punishment. Therefore, it should not happen until there is a finding of wrongdoing.

      The Title Mine movement calls for even more far-reaching no-contact orders than those currently being used. According to the movement’s webpage, it demands that no-contact orders “extend beyond the classroom and residential life, specifically in regards to student groups,” that “social suspension should be instituted for the respondent in student groups of which the complainant is a member,” and “the respondent should be required to leave social settings when the complainant is present.”

      Keep in mind that the freedom of association is a basic right, as indicated by its enshrinement under the First Amendment. It is therefore concerning that a student protest would demand the administration to control whom a student may interact with off-campus. If anything, we ought to push back vehemently against any attempt by the school to interfere with students’ personal life.

      (By the way, when I mentioned “malice and deceit,” I was not referring to an incident of sexual assault. Instead, I was writing about the motives behind a claim of sexual assault. My point was that even though a complainant and respondent may disagree on what happened—implying that they cannot both be factually correct—we should not assume that one of them is being dishonest or deceitful.

      Again, I appreciate your comment and I hope I’ve made my points clearer.)

  • Michaela Cohen

    honestly a really good point and someone needed to say it