Response to Open Letter from Members of the Penn Law School Faculty

In your Open Letter of last week, you set aside your own political disagreements to

denigrate policies that could lead to safety and educational equality. By conflating the
extensive procedural protections rightly afforded to criminal defendants with
fundamental fairness1 in the context of a school disciplinary proceeding, your letter
perpetuates the harmful myth that survivors of sexual violence should be disbelieved,
silenced and denied non-criminal relief unless they seek and obtain criminal conviction of
their assailant.

No, due process of law is not window dressing,2 and you have misstated the law of due
process in the university setting. It is generally established that public universities owe
students minimal due process rights, and private universities owe them none.3 While you
critique Office of Civil Rights guidance that the evidentiary standard used should be a
preponderance of the evidence standard instead of clear and convincing evidence, as
a legal matter, private universities can discipline students with no process whatsoever.
They must only adhere to the contract set forth by their own policies. Thus, the Open
Letter must be seen for what it is: a disagreement with Title IXs mandate that sexual
assault survivors not be made to struggle through grievance procedures that specially
insulate those accused of sexual assault. This policy, and the OCRs guidance, was
designed to fight the pernicious effects of sexism, including sexual harassment and
assault, on our campus. Title IX, a civil rights law, mandates this policy for the purpose
of ensuring that people are not denied the ability to pursue and enjoy their education on
the basis of sex. The proceedings required are not criminal-light proceedings, despite
your attempts to portray them as such. Although Penns data on discipline is sadly
lacking,4 grievance proceedings are generally remarkable for the lack of consequences for
those found to have committed a sexual assault. Few students found responsible for

1 See

Open Letter From Members of the Penn Law School Faculty, Sexual Assault Complaints: Protecting
Complainants and the Accused Students at Universities 1 (Feb. 17, 2015), available at
http://media.philly.com/documents/OpenLetter.pdf.
2 Id. at 5.
3 For this reason, individuals suing private universities must use a theory of breach of contract if the
university does not follow the procedures promised by its student policies. E.H. Schopler, Right of student
to hearing on charges before suspension or expulsion from educational institution, 58 A.L.R.2D 903, 2
([A]ny right of a student to be given a hearing, or a formal hearing of a judicial nature, prior to his
suspension or expulsion from a private institution of learning can rest only upon the specific and implied
terms of the contract of admission.). For an example of this sort of pleading, see
http://www.avoiceformalestudents.com/wp-content/uploads/2014/06/Lewis-McLeod-Complaint-againstDuke-University.pdf.
4 Transparency is crucial to fairness in process, but there was no open letter to the administration requesting
the information necessary to build a more just system when no disciplinary data was released for over four
years. A perusal of the latest report shows that in 2012-2013 and 2013-2014, 15 complaints were brought in
the category of Indecent/Sexual Assault. Penn does not break down sanctions data by conduct sanctioned,
however, out of the hundreds of complaints brought under all categories of misconduct, only 3 resulted in
expulsion. You can see this data at
https://secure.www.upenn.edu/osc/documents/OSCAnnualReportData20102014.pdf.

sexual assault in university adjudications are even expelled between 13 percent and 30
percent by a recent accounting.5

Furthermore, perhaps because you know full well that Penn students have no claim to due
process in this setting, you failed to explore what your arguments mean in the context of
actual due process at state universities. If you had, you would know that it is well
established that due process allows state schools to expel students for any misconduct
using an even lower evidentiary standard than that at issue here, that of substantial
evidence.6 Why do you think it should be legally harder to expel someone for rape than
for moving newspapers,7 or cheating8 or assaulting a police officer?9 The answer again is
that your fairness standard has a basis its just not in the law. And when 16
esteemed professors of law opine in a public forum, the general public will take your
policy rhetoric as law, especially if it is cloaked in false appeals to the Constitution. Do
you also think that people facing criminal rape charges should get special protections not
afforded to other criminal defendants? Or is your concern only for Ivy League men
accused of rape? One thing is certain; your concern in this Letter is not for those of us
who have been and will be sexually assaulted.
Your collective signatures should carry with them not just the gravitas of your wellearned reputations, but also the weight of sound legal theory and academic rigor.
Unfortunately, you are correct that the concerns about fundamental fairness expressed
in your open letter are not academic or theoretical in nature.10 Rather, they are anxieties
born of uninformed and unexamined sexism. This attempt by 16 learned law professors to
unwittingly, it seems cover your sexist policy preferences with a patina of legal

5

Tyler Kingcade, Fewer Than One-Third Of Campus Sexual Assault Cases Result In Expulsion,
HUFFINGTON POST, Sept. 29, 2014 http://www.huffingtonpost.com/2014/09/29/campus-sexualassault_n_5888742.html.
6 See Reilly v. Daly, 666 N.E.2d 439, 445 (Ind. Ct. App. 1996) (Reilly's claim that she was entitled to be
judged by the clear and convincing standard of proof is contrary to prevailing authority. The law is well
established that due process requires only that universities and colleges base their suspension or dismissal
decisions on substantial evidence.) (citing Gorman v. Univ. of Rhode Island, 646 F. Supp. 799, 813 (D.R.I.
1986); Slaughter v. Brigham Young University, 514 F.2d 622, 625 (10th Cir. 1975), cert. denied, 423 U.S.
898; Givens v. Poe, 346 F. Supp. 202, 209 (W.D.N.C. 1972); Scoggin v. Lincoln Univ., 291 F. Supp. 161,
171 (W.D.Mo. 1968)); Lavinia M. Weizel, NOTE: The Process That is Due: Preponderance of the
Evidence as the Standard of Proof For University Adjudications of Student-on-Student Sexual Assault
Complaints, 53 B.C. L. REV. 1613, 1633 (2012) (Although few courts have directly addressed the
constitutionally-required evidentiary standard for school disciplinary proceedings, of those courts, the
majority have held that due process requires disciplinary decisions to be based on substantial evidence.).
Penn itself uses a clear and convincing standard for general disciplinary matters, but this is not because it
is legally required to do so. This is a policy choice.
7 Fain v. Brooklyn Coll. of City Univ., 112 A.D.2d 992, 994 (App. Div. 1985) (finding for the expelled
students, but because the substantial evidence standard was not met).
8Amaya v. Brater, 993 N.E.2d 311, 324 (Ind. Ct. App. 2013)(The designated evidence shows that there
was at least some evidence in support of the decision of the SPC and Dean Brater that Amaya cheated on
the mini-block exam, and we cannot conclude that the decision to dismiss Amaya from IUSM was not
based upon substantial evidence or was arbitrary or capricious.).
9 Furey v. Temple Univ., 884 F. Supp. 2d 223, 258 (E.D. Pa. 2012) (finding for the expelled student but not
finding that the more likely than not standard of proof used by the university violated due process).
10 Open Letter, supra note 1 at 5.

authority exemplifies the pervasive bias against women that Title IX was enacted to
address.

Emily Price Turner L15
Noelle Yasso L16
Jonathan Feder L15
George Donnelly L15
Kristin Firth L15
Matthew Hiltibran L16
Rick Mula L15
David Clay Washington L15
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