By KC Johnson
We don’t normally think of college athletes as prominent defenders of due process. Yet perhaps the highest-profile protest against the post-Dear Colleague letter demise of campus due process came last week at the University of Minnesota. Its emergence, the reaction to it, and its quick collapse speaks volumes about the relationship between due process and policies toward sexual assault on the nation’s campuses.
In September, several members of the Minnesota football team were accused of a particularly ugly gang rape. The police investigated, but the prosecutor ultimately declined to pursue charges, largely because a contemporaneous video of the incident (taken by one of the players) showed the accuser (in the words of a police report) “certainly conscious and aware of what is going on”—“lucid” and “alert.”
The university, however, conducted its own investigation and found at least some of the players guilty of the same offense (sexual assault) for which the local prosecutor had concluded he lacked probable cause to indict. Armed with that finding, the university’s athletic department suspended the players—in the process publicly identifying them. This move prompted other members of the football team to threaten to boycott the Holiday Bowl game, only to abandon their move under heavy pressure from the university and the media.
The Limitations of Due Process Protests
The timeline of the Minnesota football team’s response resembles that of the Yale basketball team’s response to the Jack Montague case. In both instances, the team began with examples of high-profile protest. Each member of the Yale team wore Montague’s warm-up shirt before a game. Each member of the Minnesota football team stood behind a statement indicating that university procedures had denied their teammates’ “due process,” in part by finding them guilty of the same offense for which the police had chosen not to bring charges.
Within 48 hours, under what appeared to be heavy internal and external pressure, the teams backed down and issued statements effectively retracting their original protests. In both instances, these statements were radically different in tone and substance from the teams’ original actions and read as if written by a university administrator rather than by college students.
Contrast both the Minnesota and Yale outcomes to that at the University of Missouri. When the Mizzou football team threatened to boycott on behalf of student protesters alleging racial discrimination on campus, the president was fired. The backdowns in the Minnesota and Yale cases, by contrast, provides a reminder of where the power lies in universities on due process issues and sends a message to other students that standing up for due process in sexual assault adjudications will be futile.
The Minnesota case includes one element absent in the Yale matter. Local reports suggest that the players’ unity was in part eroded by the release of the university investigative report. Even construing the incident in the light most favorable to the accused players, this lengthy document revealed an ugly, troubling episode in which the accused players were almost caricatures of unfeeling misogynists. Little wonder the other players then folded. (One of the players has subsequently maintained that the boycott nonetheless will ensure that future accused students are treated fairly, but no signs exist that Minnesota will in any way change its policies.)
Ironically, however, the leaking of the report (to a local TV station) heightened the due process critique the team originally made. The report, of course, was supposed to be confidential. Given its conclusion, and its highly negative character portrayals, it’s inconceivable any of the accused players leaked it. That leaves someone from the accuser’s legal team, or a university official, as the likely source—figures willing to waive the confidentiality requirements when they thought it would be helpful to their side of the case. The report’s leaking, in this respect, casts further doubt on the integrity of the Minnesota adjudication process. Just as with Yale and the Patrick Witt case, however, I wouldn’t hold my breath waiting for an investigation to identify the leaker who violated university policies.
Blue State Laws
The last few years have featured a wave of blue states passing “affirmative consent” laws, which effectively require accused students to prove their innocence. Minnesota hasn’t enacted such a law (though the university does employ the “affirmative consent” standard, thereby defining sexual assault differently than state statutes). But the state did enact a first-in-the-nation law requiring “training” of all campus investigators and adjudicators of sexual assault cases.
The football players’ case was one of the first to be adjudicated under the new standards. This summer, I had asked Minnesota’s Title IX coordinator, Kimberly Hewitt, for a copy of the new training material; she declined to provide it, with a cc to the university public relations office. (I then obtained it through a state public records request.) I can see why Hewitt wasn’t eager for the material to become public. Minnesota has trained its sexual assault investigators by having them attend an event organized by the Minnesota Coalition Against Sexual Assault; sessions from the National Association of Colleges and Universities; participating in the “Minnesota Campus Sexual Violence Summit”; joining an AAU Survey of Sexual Assault and Sexual Misconduct Webinar; and completing a course organized by the
I can see why Hewitt wasn’t eager for the material to become public. Minnesota has trained its sexual assault investigators by having them attend an event organized by the Minnesota Coalition Against Sexual Assault; sessions from the National Association of Colleges and Universities; participating in the “Minnesota Campus Sexual Violence Summit”; joining an AAU Survey of Sexual Assault and Sexual Misconduct Webinar; and completing a course organized by the ATIXA Institute, an organization associated with the anti-due process NCHERM. Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”
Adjudicators receive briefings from the Minnesota Equal Opportunity and Affirmative Action Office, the Student Sexual Misconduct Subcommittees, the university Office of the General Counsel, a local police chief, a university lecturer expert in addressing questions of credibility, the Director of Gender and Sexuality Center for Queer and Trans Life at the University of Minnesota, and the legal advocacy coordinator of the Aurora Center, a university organization that “provides a safe and confidential space for students . . . who are victims/survivors/concerned people of sexual assault.”
The list of training, therefore, contains no defense lawyers. Nor does it feature a representative of a group devoted to campus civil liberties, like FIRE (or even the ACLU). So Minnesota trains its investigators and adjudicators exclusively from sources that are either neutral or who are ideologically inclined to believe the accuser (and therefore find guilt). Imagine the criminal justice context, of jurors in sexual assault trials (and only sexual assault trials) required to receive “training,” with the training material provided only by the prosecutor and not by the defense.
The effects of this training were apparent in the university investigator’s report. Both the accuser and the accused had inconsistencies in their stories. But the accuser’s inconsistencies enhanced her credibility—“we generally attribute the differences among [her] accounts over time to her gradual recollection of what she found to be a very traumatic experience,” the university report declared—while the accused students’ inconsistencies led the university investigator “to discount their credibility.”
Nothing in the one-sided nature of the training, of course, should obscure the ugliness of the undisputed conduct detailed in the report. (This was, in the light most favorable to the accused players, an episode of group sex amidst underage drinking, while the players were entertaining a high school recruit.) But despite the wording of a statement issued from the president’s office, Minnesota didn’t suspend several of the players because their behavior conflicted with university values; it suspended them because the university concluded they had engaged in behavior the state considers a felony—even as the prosecutor declined to seek indictments over the same behavior.
Initial coverage of the players’ boycott statement was basically fair—at least in the local Minnesota media. That tone soon changed. It changed despite the fact, as Robby Soave has observed, this was a protest (from students of all races) alleging that authorities had denied due process rights to accused black males. In the current national environment, in virtually any other context, this message –that young men of color had been mistreated by agents of the government who were investigating conduct that state law deemed to be criminal—would have been greeted with enthusiastic support from the mainstream media.
Yet (unsurprisingly, given the general media attitude regarding due process and campus sexual assault), the editorial and commentary response was overwhelmingly negative. This Sally Jenkins piece in the Washington Post is a representative sample; this Dave Zirin piece is a typically extreme manifestation of the attitude. In its editorial condemning the players who threatened to boycott, the Star-Tribune conceded that “there can be discussion over whether [preponderance of evidence is the correct standard and over the high level of secrecy involved in the disciplinary process at the U,” and noted that there “has been pushback in other high-profile incidents across the country over the current system and the way standards are applied.”
In other words: the editors conceded that the due process concerns presented by the students had merit. After making the point, the editors nonetheless charged that, through their protest, the players threatened to “further damage the university’s reputation.” Is there any other context in which a left-of-center editorial page would advance such a claim about students advocating for other students’ civil liberties?
Beyond the choice of framing, both the Times (in a straight news story) and the Star-Tribune (in its op-ed) erroneously asserted that the University of Minnesota was required by “law”—even Obama administration officials (albeit very reluctantly, under prodding from Senators Lamar Alexander and James Lankford) have conceded that the Dear Colleague letter doesn’t carry the force of law. The Times quietly eliminated its error. After the issue was pointed out on Twitter.
After the issue was pointed out on Twitter, the Times replaced, without acknowledgment, the claim that Minnesota had to use a lower standard of proof by law with the following passage: “Burdens of proof used in such investigations are frequently lower than the criminal justice system’s.” The false claim in the Star-Tribune editorial remains. The errors reflect the generally poor approach the media has featured in covering campus procedural issues.
The Minnesota football coach has said that his public support for the protest threatened his job. Given the current atmosphere on campus, he’s probably right.