Professor’s Lawsuit Against JMU Highlights Necessity of Campus Due Process Protections
Michael B. Miley
June 21, 2021
Allegations of sexual misconduct or sexual assault are serious charges that demand a serious and consistent process for the investigation and deliberation as to the fault, or lack thereof, assigned to the accused. Even if a wrongly accused person does not face a severe and visceral punishment such as prison, a finding of fault by an officially-sanctioned institutional authority—particularly as it relates to sexual misconduct—can devastate a person’s life by potentially destroying their professional reputation and private relationships. All individuals, and groups of individuals, can find assurance in procedures that ensure the law applies to everyone equally.
Campus adjudicative systems have long been criticized by legal scholars for lacking basic procedural protections for the accused, but in 2011, the Department of Education’s Office of Civil Rights issued new guidance for how universities must handle allegations of sexual assault, which has brought those procedural concerns into much greater focus. The guidance document, known as the “Dear Colleague Letter,” required universities to adopt a “preponderance of the evidence” standard (greater than 50 percent chance allegation is true), granted accusers the right to appeal a university’s finding of no-fault/not guilty, and encouraged universities to restrict an accuser’s right to cross-examination.
Thus, a situation was created where universities—ill-equipped to prosecute sexual misconduct in the first place—faced serious pressure by the federal government to return findings of guilt or responsibility for those accused of sexual misconduct, as too many not guilty verdicts could result in loss of federal funds for non-compliance with agency directives.
A recent federal complaint filed in Virginia is illustrative as to how this process can railroad an individual totally without merit, and why then, due process protections necessarily improve the Title IX process. In 2015, the complainant, Alyssa Reid, a nationally recognized debater, and professor at James Madison University began a romantic relationship with Kathryn Lese, a female graduate TA who Reid did not supervise and who did not work in Reid’s department. Indeed, one year into their relationship, an anonymous complaint prompted a Title IX investigation by JMU, which cleared Reid of any wrongdoing in her relationship with Lese for precisely those reasons.
Two years later, their relationship ended on less than pleasant terms and Lese began sending Reid abusive text messages with threats to “ruin” Reid’s career. Lese then gave a statement to JMU’s Title IX office that did not meet the standard necessary for a formal complaint; it did not allege that their relationship was non-consensual, unwelcome, or negatively impactful to her education. Reid alleges that JMU discriminated against her because of her sex and sexual orientation when they improperly accepted Lese’s complaint, did not inform Reid of the complaint against her for two months, applied the wrong version of JMU’s Title IX policy to her case, and imposed sanctions on Reid prior to the consummation of the Title IX investigation, hearing, and appeals process; furthermore, there were no representatives of the LGBTQ community on Reid’s hearing panel, and during the hearing, she could not cross-examine Lese and Lese’s witnesses, and was prevented from presenting her own witnesses.
Reid is recognized by students for using her rhetorical skills and communicative abilities to give voice to marginalized individuals and groups, and her voice has been silenced now because of an unstructured process that turned Reid into an unperson: guilty, with no way to prove her innocence.
Often when faced with difficult choices, or a seeming crisis scenario—especially when the government confirms the existence of said crisis—the temptation to temporarily (at least at first) ignore or weaken procedural protections, or components of procedural protections, that are, or may appear to be, impediments to speedy dispositions and decisive institutional action.
The social, economic, and political benefits all Americans receive from the procedural safeguards of our legal system, however, must not be forgotten or ignored. Indeed, if there are concerns from society, or certain segments of society that government mandated adjudicative systems are not achieving their espoused ideal of “equal justice under law,” the answer is not to dispose of the entire system, and all the protections inherent to it, but rather the answer is to look for ways these due process rights can be strengthened and applied to extrajudicial adjudicative bodies.
Citation:
[1] See Samantha Harris & KC Johnson, Campus Courts in Court: The Rise in Judicial Involvement in Campus Sexual Misconduct Adjudications, 22 N.Y.U. J. Legis. & Pub. Pol’y 49, 53 (2019).