I am truly coming from a place that has confidence in you (without even knowing you or your story). Take your stand on top of the place where someone thought he had you down. Look beyond. And as for the strictly legal, work to put it on your side. The larger legal. Look beyond Swarthmore (which is Swarthmore’s job to help you do). That’s what I am saying. I trust you.

The point is:

a) universities can’t just defer to the criminal justice system
b) they shouldn’t use systems which directly mimic it, either: those systems are too burdensome, complex and are intended to protect the rights of citizens from their governments
c) which leaves unspecified: what would be the best system?

I think the current direction is promising, which is to construct a separate system for dealing with sexual assault because it’s poorly suited to systems that can deal adequately with petty theft, minor altercations and plagiarism.

Actually a university could do all those things. Which doesn’t mean that it should. A university could absolutely have a dress code, for example. As I noted, there are universities which very much make aspects of their student’s private lives into something the university governs. A university could have a thought code. In fact, all of them do already in some sense: they disallow plagiarism in the submission of work that has no independent commodity value. If I write a letter to a friend and I plagiarize, there would be no court remedy for that, because I haven’t really deprived the original author of expected monetary value. But a university controls your “thoughts” in this respect. It does in other ways, too: as a professor I control what counts as an acceptable answer to an essay question, for example. If a student says, “I am exercising my freedom of speech: I am going to argue that the best answer to an essay about the slave trade in West Africa is my homework assignment from Physics 1”, I can absolutely say, “I do not accept this assignment, you failed the class”. The US government can’t require you to say or think anything about the history of the slave trade and physics, in contrast.

This is one of the classic confusions in American life: we assume that all associational and private life is governed by the same rights that we possess in our public and political lives. But literally no one really thinks that. If I join a rugby club but maintain that it is my right, because of the 1st Amendment, to wear the uniform of the opposing team, or to play by my own rules while on the field, and that the league or team cannot impede those rights, I’m really not understanding that important distinction.

The classic way that our civil rights intrude into private spaces and associations is either via arguments about public accommodations or through the government’s obligation to secure my rights against individual trespass. Educational institutions are in many ways considered to be providing public accommodations and therefore cannot maintain discriminatory barriers to access or service. Educational institutions, like any private entity, can’t actively deprive students or workers of basic civil rights. So a college can tell you to leave–it doesn’t have to provide you service–as long as in telling you to leave it is not doing so in a discriminatory way. A university cannot deprive you of your liberty–say, jailing you. It can’t order you to pay civil damages to another student (It can bill you for direct damage you’ve done to its property, but it can’t compel you to pay that bill without using the government’s court system.) A university (or other private concern or individual) cannot execute you.

That’s the basis for the distinction between government and service-providing institutions of any kind: what the government can do to you, under some conditions, is to modify the rights you would otherwise possess. The government, constrained by the Constitution and laws, can deprive you of your liberty. It can in many states deprive you your life. It can take your property. It can order you to comply with its lawful instructions, including instructing you not to speak (say, with a gag order during a judicial proceeding).

Which is why there are specific provisions for due process in the US Constitution: because what a government can do to its citizens is so potentially momentous.

Being suspended or expelled or disciplined by an institution of higher learning is potentially quite consequential. But it doesn’t match any of those other kinds of consequences. It is a good idea for educational institutions to take those consequences seriously enough that they create procedures that reflect the gravity of those outcomes. It’s a good idea first because that’s fair and just. But also because if you don’t, you’ll be creating an exposure to civil suits that do NOT use “beyond a reasonable doubt” as their standard of proof.

But it is not required that they do so. A university could specify that there is a Dean of Unpleasant Decisions who is authorized to use their executive powers to expel at will for anything they feel violated their stated Code of Conduct. It would be in my view a bad idea to matriculate at such an institution, both because of what it says about their values and because of the probability of losing whatever value I have invested in my education there. I think it would be an equally bad idea to matriculate at an institution that told me that my only remedy if another student did something to me or my property was to report him/her to the police, that the university was powerless to do anything about it until there was a court judgment. I know I wouldn’t want to work for an institution that told me as a faculty member that if a student punched me in the mouth during class, I’d just have to call the cops and wait for the judicial system to finish its process–that in the meantime, I’d have to keep teaching that student for the rest of the semester as if nothing had happened. But this is essentially what you propose: that the university itself have no systems whatsoever for maintaining discipline and adherence to its conduct code, and defer entirely to the courts.

Thanks. I think actually that this is a domain where activists looking for reform need to keep working on how to describe and narrate this point. It’s tricky to figure out how to say that there are more than one form of assault without incidentally feeding the ideology that there is “real rape” (usually imagined as “stranger rape”) and then there is something else. E.g., what’s the language that would let survivors and their advocates talk about the seriousness of assault across a range of manifestations and circumstances without using a hierarchy? Or if it is a hierarchy, how to not let that diminish or dismiss assault of other kinds.

I disagree, on the other hand, with mch’s comments and wanted to respond as a student who was sexually assaulted and went through the disciplinary process at Swarthmore.

It is true that rape is a serious crime that deserves to be brought to police, but mch seems to have forgotten that rape is only one form of sexual assault. Many assaults (and attempted rapes) leave no physical evidence, and therefore working with the police and district attorney is out of the question. Yes, these assaults can be reported, but without physical evidence (or witness testimony) most departments are unable to investigate and most DAs would not pursue a prosecution.

These assaults can be just as traumatizing as rape, but by saying the criminal justice system is the only way to pursue a case, you are saying these assaults are not as serious. This is one of the many reasons reporting numbers are so low in cases of sexual violence and harassment.

I’m completely in agreement that a good college system will encourage taking charges of rape and assault to the criminal justice system.

While I worry that “due process” conceptually makes people think that a system for weighing evidence in campus processes is the same as weighing evidence in a criminal trial (and therefore has to be identical to the criminal system, right down to adversarial legal advisors), it’s clear that whatever system you have has to take the need for evidence seriously. You shouldn’t suspend a student just because his roommate says he stole a wallet or because a professor says he cheated. A good system should need more than that to go on, however it’s designed.