On September 16, 2015, ALI members Stephen J. Schulhofer of New York University School of Law, Jeannie C. Suk of Harvard University Law School, and Michelle J. Anderson of City University of New York School of Law participated in a debate discussing whether universities are equipped for enforcing policies in response to sexual assault violence, or whether the criminal court system is better suited for the task.
The panelist members were presented with the motion that courts, not campuses, should decide sexual assault cases. Dean Anderson argued that because “[c]ampuses have to insure equality” they should be able to take protective measures to guarantee that a safe learning environment is available to all students. Examples of such protective measures include staggering classes, relocating students into a new dorm, and student suspension. Such remedies, Dean Anderson noted, can be implemented by campuses in a more expedited manner than remedies available by going through the court system.
Professor Suk argued that most campus adjudication processes “lack basic fairness and often reach inaccurate outcomes.” Professor Suk provided examples of unfair procedures practiced by campuses, including failure to provide the identity of alleged witnesses; barring the accused’s attorney from speaking or even being present during the hearing; and prohibiting the accused from questioning the accuser or witnesses. Not only does the process cast doubt that the individual found guilty for sexual assault is indeed guilty, Professor Suk fears it “reinforces society's skepticism toward rape victims.”
In response to Professor Suk’s argument, and against the motion, Professor Schulhofer acknowledged that some colleges have fallen short of providing a fair adjudication process. However, barring campus discipline entirely is not a solution to that problem. The question being debated, Professor Schulhofer claimed, “is whether to fix the problem by requiring the colleges to do better, or whether to prevent all campuses from deciding these cases no matter how careful they are.” Professor Schulhofer added that due process problems are not unique to campus tribunals as they are found in criminal cases as well.
Professor Schulhofer currently serves as the project Reporter for the Model Penal Code: Sexual Assault and Related Offenses project. Dean Anderson and Professor Suk are on the Members Consultative Group for the Project on Sexual and Gender-Based Misconduct on Campus: Procedural Frameworks and Analysis. To view details and the current status of these projects, please visit the Projects page.
The debate, hosted by Intelligence Squared U.S., was held at the Kaufman Center, located in New York City. Click here to watch the full debate.
Read an article on the debate published by The Chronicle of Higher Education.