One would think though, that there are certain basic ideas that everyone would agree on. For example, there should be a difference between investigation and prosecution. In other words, when the college authorizes someone to investigate whether or not a rape took place, the investigator should begin with a neutral mindset rather than an assumption that the accused student is guilty.

Relatedly, if the university assembles a panel to hear the charges, the panel should also go into the hearing with a neutral mindset. The university’s position should be neither that the student is guilty or innocent until the university has been presented with the facts. It would be difficult to imagine any principles that are more basic to a fair process.

However, a recent case involving Clarion University of Pennsylvania, a public university, shows how deeply confused universities and their attorneys can be about the basic elements of due process, even in a hearing involving a charge as serious as rape. The case was recently discussed in the blog “Academic Wonderland.” In this case, the rape allegations were investigated by Matthew Shaffer, the university’s Director of Student Engagement and Development. Unfortunately, Shaffer and the university did not seem to be on the same page in terms of Shaffer’s role. Shaffer testified that he was a “neutral party during these proceedings.” However, during oral argument before an appellate court, the university’s attorney was asked by the judges about the fact that Shaffer seemed far from neutral at the hearing, because Shaffer offered his own opinions and did not just stick with the facts. Judge Thomas Ambro asked: “What about the conjecture or the opinion statements if you will by Mr. Shaffer with regard to what he believed happened, whom he believed, etc.? He went beyond the facts didn’t he?”

Counsel for Clarion replied, “He really was in the position of a prosecutor . . .” Judge Ambro replied, “Well that’s interesting because I thought he was the investigator for the case.” In response, the attorney seemed on the verge of calling Shaffer an “investigator/prosecutor” but then clearly thought better of it: “Well it’s an administrative proceeding, he’s an investigator slash . . . I mean he’s the one who presented.”

Judge Ambro was having none of it: “If you are saying he’s the prosecutor, you’re saying he’s not there to just get the independent facts, he’s there to be a prosecutor.”

Things only got worse. The lawyer for Clarion said: “I’m going to concede this. In the record, it does indicate that the normal function of him or someone in the same position was to present the university’s side of the case. It was not presented as this completely neutral thing.” But of course, the role of the university is supposed to be to decide if the accused student committed the rape or not. That is completely incompatible with the idea that there is a “university’s side” prior to the hearing. As judge Morton Greenberg retorted, “Was there a university side of the case before the hearing? I would have thought that there shouldn’t have been, that they should have been neutral to that point.”

In short, the university seemed to be deeply confused about whether they were giving the panel a neutral presentation of the facts or were making a prosecutorial case against the accused student. There was similar confusion about whether the university was supposed to decide upon the accused student’s guilt prior to the hearing.

To make matters worse, there is a very good chance that the accused student will lose this case anyway. That is because he chose not to attend the hearing at all. He made that decision because he was also being criminally charged and if he participated in the college hearing he would be effectively waiving his right to remain silent during the criminal investigation. This is a classic dilemma when there is both a criminal and civil case. To avoid such conflicts, judges in civil matters routinely delay the civil cases until the criminal cases are resolved. But colleges don’t do that because they want to resolve the matter quickly.

Criminal prosecutors are well aware of this dilemma and use it to their advantage in order to circumvent the student’s right to silence. For example, at a 2015 meeting of the International Association of College Law Enforcement Administrators, Susan Riseling, the Chief of Police at the University of Wisconsin at Madison spoke about how to get around the right to remain silent and use Title IX proceedings to circumvent the student’s constitutional rights:

[Riseling] also described a case at Wisconsin, in which the Title IX investigation was the only reason police were able to arrest a student accused of raping his roommate’s girlfriend.

The accused student denied the charges when interviewed by police, Riseling said. In his disciplinary hearing, however, he changed his story in an apparent attempt to receive a lesser punishment by admitting he regretted what had occurred. That version of events was “in direct conflict with what he told police,” Riseling said. Police subpoenaed the Title IX records of the hearing and were able to use that as evidence against the student.

“It’s Title IX, not Miranda,” Riseling said. “Use what you can.”

Riseling also suggested, “Title IX investigators should watch the police’s interview through a television feed, and prompt the detective to ask any additional questions.”

The rush to judgment in the Clarion case was particularly unfortunate because the university held its hearing before the DNA evidence became available. In fact, the DNA did not match that of the accused student and the police dropped all charges. Nonetheless, the student remains expelled.

A final matter to consider is that the accused student is African American. According to the complaint, African Americans are drastically overrepresented among Clarion students tried for sexual misconduct. A future post will discuss the issue of racial bias and sexual assault on campus. For now, it is worth noting that an African American student has been expelled from college by a process that seems confused about the most basic concepts of a fair hearing. He remains expelled even though the charges were dropped by the police as a result of the DNA evidence that the college hearing panel never saw.