A bill has passed the Colorado house addressing the process for handling Title IX sexual misconduct allegations, one aspect of which is to require colleges to provide an advisor to the accused. Good news? Maybe not so much.
HB 18-1391, “Sexual Misconduct in Higher Education” aims to require higher education institutions to set clear policies for sexual assault reporting and investigating, and to establish minimum standards for those policies.
The bill would limit the involvement of legal counsel in proceedings. The accuser and the accused would have “the same opportunities to have an advisor or other person present during any part of the proceeding; except that the advisor or other person is not allowed to speak on behalf of the complainant or responding party during the course of the proceedings.”
Oddly, the text of the bill says nothing of the sort.
(IV) PROVIDE THE COMPLAINANT AND THE RESPONDING PARTY WITH THE SAME OPPORTUNITIES TO HAVE AN ADVISOR OR OTHER PERSON PRESENT DURING ANY PART OF THE PROCEEDING; EXCEPT THAT THE ADVISOR OR OTHER PERSON IS NOT ALLOWED TO SPEAK ON BEHALF OF THE COMPLAINANT OR RESPONDING PARTY DURING THE COURSE OF THE PROCEEDINGS;
For the unwashed, there’s a certain parity that creates the appearance of fairness when the “complainant and the responding party” are both provided the opportunity to have an advisor, though this makes no sense. The complainant doesn’t prosecute the the accusation, but is merely a witness. The school handles the prosecution. Indeed, the complainant isn’t obliged to appear, no less be required to provide first-hand testimony nor be cross-examined.
But the responding party, the accused, is the only person at risk of sanction, and the punishment could be extremely severe.
The logic behind barring attorney participation in investigation proceedings is that some believe it levels the playing field.
According to Raana Simmons of the Colorado Coalition Against Sexual Assault, attorneys “turn investigations from a truth-finding process to a who has the most money process.”
This is facially nonsensical, as there is nothing in the bill that precludes a party from hiring a lawyer. It only precludes the advisor, whoever that may be, from speaking on behalf of his client during the proceedings. It’s unclear whether that means the actual hearing or the investigation preceding the hearing.
But it raises the question of what role the advisor exists to play, and what detriment is created by the advisor being precluded from speaking on behalf of the accused. Most schools provide an advisor for the accused. Most schools preclude the advisor from speaking at the hearing. To that extent, this bill doesn’t change practice, but rather gives the typical practice the force of law.
So you have a college student put in a position of being accused of a heinous offense and facing devastating consequences. The student is wholly unequipped to understand the process itself, or how to defend against the accusations. He doesn’t know what evidence is, no less how to gather it, assuming he hasn’t been “informed” that he’s not permitted to gather evidence because that would violate claimed proscriptions of revealing the confidential Title IX process and possibly “harass” witnesses or the accuser.
But the advisor is there to help him? Would an art history professor be any better at gathering evidence, preparing a defense, teaching an undergrad how to argue his cause, challenge allegations, explain the relevance of evidence, formulate appropriate questions? Would that art history prof be any more competent at it if he was given Title IX training, like being “trauma informed” to believe the victim and be sensitive to her feelings?
That the college will not, of its own volition, provide a lawyer is hardly surprising. Lawyers cost money which could be better spent on Title IX administrators, and certainly gum up the works. But to preclude a student from retaining his own counsel is another matter. No, the Sixth Amendment right to counsel doesn’t apply here, but doesn’t every individual have an inherent right to seek counsel of his choosing if he can afford it?
That last bit, “if he can afford it,” should stand out. Does that mean the poor student is put in a significantly disadvantaged position because he can’t afford a lawyer? You bet. But is the solution to a poor student’s disadvantage to impose the same disadvantage on all accused?
This is where the fallacious notion of parity comes into play. The argument would seem that the same disadvantage is placed on the accuser, as if that someone levels the playing field. It does not. The accuser enjoys a Title IX bureaucracy, from investigators to administrators, to present her allegations. Once the accusation is made, the accuser has no need for an advisor. Indeed, the accuser has no necessary role at the hearing at all.
The better answer would obviously be that the indigent student be provided independent legal counsel, but the law makes no such requirement and colleges are disinclined to spend the money or do something to make their ability to “convict” him more difficult. So too is the Colorado house.
“I think it is a question of whether we are going to provide fundamental fairness to both parties,” said state Sen. Bob Gardner (R-Colorado Springs) to the committee.
Sounds nice, even if it’s sheer nonsense. But beyond the failure to provide poor students with the counsel they require, with the skills necessary to assist in the defense, is the preclusion of the advisor from speaking at the “proceeding.” Do undergrads have mad skillz at making sound arguments in their defense? Do undergrads have the innate ability to formulate incisive cross-examination questions, even if the only person they’re allowed to question is the college’s Title IX investigator, whose job it is to provide conclusive testimony from which no outcome other than guilt could be reached?
You can’t challenge the underlying allegations of fact when you can’t question the person who claims first-hand knowledge of the facts. You also can’t challenge them when you lack the skills to form the right questions.
The problem with this prong* of the Colorado law isn’t that it changes the current practice, but that it gives force of law to existing due process failings. When it’s finally recognized that the current campus inquisitional approach to sexual misconduct was outrageously improper, this law will prevent correction of the process to allow the accused basic due process protections. And then there will be the push to repeal this misguided law, wondering how Colorado could have enacted a law that was so flagrantly violative of due process.
*There is a second prong requiring colleges to use the “preponderance of the evidence” standard as the burden of proof, which raises very different issues beyond the scope of this post.
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