Monday, October 26, 2015

The Campus Crusade against Sexual Assault in the Context of the Ongoing Erosion of the Rights of the Accused

We have witnessed in the United States a steady, if  in some ways subtle, erosion of the rights of the accused in the past 35 years.  To wit:

1.  The so-called War on Drugs has resulted in the highest incarceration rate among all the Western democracies.

2.  The plea bargain has become the procedure of choice in some nine of ten criminal cases.  Combined with the piling on of charges by prosecutors and the prohibitive cost of mounting an effective defense, this trend has replaced the Sixth Amendment right to a speedy trial as the mechanism for moving cases quickly through the creaking criminal justice system.

3.  The so-called War on Terror has resulted in the militarization of state and local police forces.  Meanwhile, the expansion of Americans' rights under the Second Amendment --- proceeding virtually hand-in-hand with the contraction of rights under the Sixth Amendment --- has resulted in battle lines being drawn between our law enforcement agencies on one side and the nearly-as-well-armed organized criminals, radical paramilitary organizations and lone-wolf madmen on the other.

4.  The erosion of America's middle class and the widening gap between the super-rich and the rest of us --- driven by numerous factors, including the decline of manufacturing and the powerful labor unions that had secured workers' fair share of industrial profits; the automating of millions of jobs, now even in the service and retail industries; the reduction of taxes on the rich and super-rich together with Citizen United's lifting of limits on the use of their ever-increasing stockpiles of dollars to buy public offices --- is leading inexorably to a permanent proletarian underbelly.  This divide along economic, and to a large degree racial and ethnic, fault lines can only exacerbate the trends identified in 1 through 3, above.

Enter the (probably well-intentioned) crusade to eradicate sexual assault on America's college campuses, begun by President Obama in a June 2014 speech and taken up with vigor by his Department of Education.   Consider this statement by a university administrator with whom I am acquainted: "In order to remedy the lack of quick and effective resolution of sexual assault cases in our courts, the Department of Education wants colleges and universities to do what the justice system can't... by lowering the standard of proof from 'beyond a reasonable doubt' to 'more likely than not,' and requiring that sexual-assault investigations plus adjudications be completed in 60 days."

Now, consider this comment in the context of my comments on the erosion of the rights of the accused.  Just as the proliferation of the plea bargain has largely supplanted the Constitutional right to a speedy trial, and the militarization of our police poses an unprecedented threat to our Fourth and Fifth Amendment rights, so too does the new DOE regime for the "War on Campus Sexual Assault" erode the rights of the accused in the context of this latest American criminal 'justice' crusade. 

Mind you... much, perhaps most, of what I have described above has occurred with the best of intentions:

1.  The proliferation of drugs and drug trafficking led to the War on Drugs.

2.  The Nine/11 attacks led to the militarization of our police.

3.  The flood of accused in our criminal courts led to the dominance of the plea bargain.

4.  Respect for First and Second Amendment rights by the conservative Justices who control our Supreme Court led to the lifting of limits on campaign contributions and on the prolific possession of fire arms by private citizens.

So, too, does a sincere desire to eradicate sexual assault in those venues where America's young adults are concentrated in their greatest numbers drive the current campus crusade.

In McCarthy's day, the Cold War justified witch hunts for reds in our government, entertainment industry and media.  During the Nixon administration, national security justified Watergate.  We now see how wrong-headed and dangerous these crusades were.

In every era, there is an issue --- drugs, terror, sexual assault - that is seen by its proponents to be so significant as to justify the erosion of our civil liberties.  And, so far, in every era, the arguments favoring these causes ultimately have been discredited.

So too, I predict, will be the current campus crusade.  But this will take some time.  As I discovered earlier this year, when I dared, during supervisory training at a university, to criticize the due-process flaws in the campus-based system imposed by the DOE on sexual-assault investigations/adjudications, the attack dogs remain ready to slip their leashes against anyone with the temerity to come out openly against this latest American domestic 'war.'  But the pendulum, I further predict, will swing in the opposite direction, as the unsoundness of the legal principles underlying the campus investigation/adjudication process are revealed with increasing clarity.

Monday, October 19, 2015

As federal policy turns campuses into court rooms, the statute of limitations becomes an issue.

At the University of California, the former head of the Department of Homeland Security, now the prez, ponders whether there ought to be a time limit on when sex harassment charges can be brought against a prof. 
In this case, a well-known astronomer stepped down from his professorship, after the investigation of belated charges leaked and became international news. Napolitano says there should be a statute of limitations on such charges.  But critics counter that it's hard to charge when you're still a student.

The bigger issue in my mind is how far the fed will push colleges to become courts.  We now must investigate and adjudicate sexual assault charges.  This is "damned if you do, damned if you don't" task... one side or the other will be disappointed with a high likelihood of a lawsuit to follow.  

The lightning rod for much of this storm is the dean of students.  It once must have been fun to be the head of the student-life division of a college.  No longer... now the dean is the likely target of a suit, along with her institution, when for example an accused male student cries "foul" and files a defamation claim.

Being a campus cop, likewise, is no pleasure.  This is brought out in a story today in the Chronicle of Higher Education.

Without a doubt:
  • Too much drinking takes place on college campuses
  • Sexual assault is a shameful fact of life at too many schools
  • Sexual harassment by faculty and staff should never be tolerated, and
  • Violence and crime must be deterred constantly, as in any other town or small city

All this being said, and accepting that the burden is not likely to be lifted from our shoulders anytime soon, we in higher education need to become a lot more savvy on the ways of law enforcement and adjudication... as well as the best practices in risk management to avoid subsequent litigation.

Friday, October 16, 2015

The great experiment is underway: will allowing guns on campus end the slaughter?

Wisconsin seems to be poised as the next state to give it a go:

While, as they say, the jury is still out, the National Review has just posted an article arguing that concealed-carry licensees are less likely to commit a crime than even police officers on average.  The article adds ten instances in which such citizens did indeed prevent a potential mass shooting.

The prestigious Washington Post is the source of this latter claim.

In my hate-crimes class last night, most students seemed skeptical about this idea as a solution.  And at first blush "The solution to bad guns is more guns" hardly seems equivalent to "The solution to bad speech is more speech."  

Still, one of the central ideas of federalism is that every state is a little laboratory where the citizens can experiment with new, even radical, ideas.

As one of my students noted last night, there are just so many guns in this country now that you will never be able to get rid of them.  And, so, to borrow another cliche, perhaps fighting fire with fire (no pun intended) is the best way our of our present quagmire involving the nuts and the lonewolves with their guns.

Thursday, October 15, 2015

The cowboy culture comes to campus at UT-Austin. Will it work?

I'm of an age when everything is now 50 years ago.  For instance, this weekend, my wife and I will celebrate the 50th anniversary of our first date.  A couple of years ago I taught a Law & Justice course inspired by the 50th anniversary of the Kennedy assassination.  And 50 years ago a nut named Whitman went up into the tower at the University of Texas in Austin and shot dozens of people.

The Lone Star State is marking that anniversary with a new "concealed carry" law that allows concealed weapons on the campus. 
As this story attests, lots of people are upset with the new statute.

Here's the chapter from my book, "Al Qaeda Goes to College," that includes the story of the Texas Tower Massacre:

The endless string of mass shootings that occurs in this country, often aimed at schools and colleges, leaves us all scratching our heads.  The concealed-carry laws are one attempt to meet the issue head on.  There is precedent for them in Israel.  Also, I guess, in the Old West, including Austin, Texas.
 As I've noted in this space on other occasions, the American problem is not the number of guns in our country.  Canada can match us on a per capita basis, yet rarely experiences such shootings.  

The number of nuts who can get guns is certainly problematic and tougher laws involving background checks might help.  

It was no help that Congress enacted a law a few years ago that protects retailers from lawsuits for selling the guns to the killers.  That, it seems to me, was a step in the wrong direction.

But the bottom-line issue is our culture.  Fifty years ago (naturally), media guru Marshall McLuhan said that Americans view the world through a rear view mirror  He said we lived in "Bonanzaland," referencing a popular cowboy show on TV at the time.

He was right then and it hasn't changed now.   The myth of the rugged individual permeates our national mindset.  It's one reason we worship the wealthy and famous, while working three jobs to make ends meet, instead of flocking to labor unions to force a more equitable distribution of wealth.  It's why Donald Trump can preach hate and be applauded.

Until that mindset changes --- and remember, it took two world wars and a Holocaust to change the Europeans' warlike mindset --- the shootings won't stop.

That being the case, maybe arming more "good guys" actually is the way to go.  As another guru once said, "We'll see...".