Tuesday, December 10, 2013

An Education in College Justice

Under pressure from the Obama administration, a university tramples the rights of the accused


Joshua Strange will never forget the girl he met in May 2011.

Both were underclassmen at Alabama's Auburn University when a common acquaintance introduced them. "We instantly became attached at the hip and did everything together," she recalled six months later. "I rather quickly moved into his place. . . . Everything was great until pretty much June 29."

That night, an intimate encounter in Mr. Strange's bed went wrong. She called police, who detained him for questioning. She said she had awakened to find him forcing himself on her; he said the sexual activity was consensual and initiated by her. There was no dispute as to the physical acts involved.

The accuser did not press charges that night. In fact, before sunrise she returned to his apartment, and the couple agreed to continue dating. When I asked him why in a recent phone interview, he told me: "I cared about her."

But the relationship soon disintegrated. Phone records show their communications ended in mid-August. In early September he was arrested again after she told police that two days earlier he had confronted her in a public place and struck her. He flatly denied it, saying he was 15 miles away at the time. This time she did press charges, for misdemeanor simple assault as well as for felony forcible sodomy in the June 29 incident.

Mr. Strange was cleared on both counts. On Feb. 3, 2012, a grand jury handed up a "no bill" indictment on the sodomy charge, meaning the evidence was insufficient to establish probable cause for prosecution. On May 24, when the simple-assault case went to trial, the accuser didn't show up. "I don't have a witness to go forward with, your honor," said city attorney Michael Short. Case dismissed.

So Mr. Strange got his day in court and was treated fairly. But he had already been punished for the unproven crimes. Auburn expelled him after a campus tribunal found him "responsible" for committing the catchall offense of "sexual assault and/or sexual harassment." A letter from Melvin Owens, head of the campus police, explained that expulsion is a life sentence. If Mr. Strange ever sets foot on Auburn property, he will be "arrested for Criminal Trespass Third," Mr. Owens warned.

Joshua Strange, now 23, is a civilian casualty in the Obama administration's war on men. In an April 2011 directive, Russlyn Ali, then assistant education secretary for civil rights, threatened to withhold federal money from any educational institution that failed to take a hard enough line against sexual misconduct to ensure "that all students feel safe in their school." The result was to leave accused students more vulnerable to false charges and unfair procedures. The prospect of losing federal funds has left university administrators "crippled by panic," Robert Shibley of the Foundation for Individual Rights in Education told me. "The incentives are pointing toward findings of guilt, not accurate findings."

The injustice of such proceedings is largely hidden from the public, because most universities conduct them secretively. Auburn is no exception. Its Discipline Committee's hearings are closed to spectators, "private and confidential" under university bylaws. But Auburn keeps on file an official audio recording, a copy of which I obtained.

Ms. Ali's directive had an effect even before Mr. Strange's hearing began. At the time, Auburn's bylaws stipulated that accusers in campus disciplinary cases had to show "clear and convincing evidence" to establish guilt. Less than three weeks before the Nov. 8, 2011, hearing, Brandon Frye, then director of the Office of Student Conduct, informed Mr. Strange that the rules had changed. As per Ms. Ali, the standard was reduced to "preponderance of the evidence."

Mr. Strange still should not have been convicted. The grand jury found there wasn't even probable cause, a looser standard than preponderance of the evidence. But the university hearing that yielded his expulsion was a travesty of a legal process.

The most striking quality of the 99-minute proceeding is its abject lack of professionalism. Imagine a courtroom with a jury and witnesses, but no judge or lawyers. Mr. Strange and his accuser had lawyers present—the only people in the room with legal training—but they were forbidden to speak except to identify themselves at the outset.

Presiding was an Auburn librarian, Tim Dodge, the committee's chairman. The other members were two students, a staffer from the College of Liberal Arts and a fisheries professor from the Agriculture College. Mr. Dodge was confused and hesitant throughout. At one point he got lost and admitted: "I can't find the script here." On multiple occasions an unidentified voice—Mr. Strange believes it is Mr. Frye—can be heard on the recording whispering stage directions to Mr. Dodge.

The absence of a judge to control the proceedings left Mr. Dodge anxious for authoritative guidance. It was provided by the two Auburn administrators the accuser called as witnesses. First up was Susan McCallister, an associate director with the campus police who doubles as a "safe-harbor advocate," a concierge for purported sex-crime victims. "Any kind of services that they need access to, we provide a doorway," she explained. Such services include counseling, "academic accommodations" and help in filing police reports.

At the hearing, Ms. McCallister proclaimed the accuser "very credible" and attested to the belief that Mr. Strange was "a potential threat to [the accuser's] safety." But Ms. McCallister disavowed knowledge even of the accuser's version of events. "As a safe-harbor advocate, I really don't need to know a lot of details, and so I didn't ask her to go into great detail," Ms. McCallister said. "I don't really want survivors to have to tell their story over and over again."

Ms. McCallister had referred the accuser to Kelley Taylor, the university's sex-discrimination enforcer and the accuser's second witness. Ms. Taylor also described the accuser as "credible" and added that she found the allegation "very compelling."

Mr. Dodge asked Ms. Taylor to describe "typical behaviors" of "somebody who may have undergone a sexual assault." She listed three. First, "they frequently cry." Second, "their storytelling is sometimes disjointed, sometimes not." Third, "there's often a lot of emotion inserted into the story that is about being very upset or in disbelief or unsure what to do next, petrified."

The second "behavior" is tautological; every story either is or is not disjointed. The third is a windy elaboration of the first. Thus Ms. Taylor's testimony amounted to a claim that in principle a woman's tears are sufficient to establish a man's guilt—an inane stereotype that infantilizes women in the interest of vilifying men.

The Ali directive stipulates: "Public and state-supported schools must provide due process to the alleged perpetrator." I asked Auburn spokesman Mike Clardy if the university is confident that its procedures meet that standard. He answered with a written statement from Jon Waggoner, interim vice president for student affairs: "While Auburn University does not comment specifically about specific student conduct cases, we feel confident that each and every student who participates in the process is afforded notice and opportunity to be heard on all matters pertaining to the specific case under review."

Mr. Waggoner was alluding to Goss v. Lopez, the 1975 U.S. Supreme Court case that established a due-process standard—notice and a hearing—for high-school students facing suspension of up to 10 days. Whether such minimal protections are sufficient for adults in college is an unresolved legal question, and Justice Byron White wrote for the court that even in the high-school context a longer suspension or expulsion "may require more formal procedures."

The Strange case vividly demonstrates the insufficiency of the Goss standard, at least as applied by Auburn. The committee's procedures were as shoddy as the "evidence" it accepted.

The university flaunted its contempt for the defendant's right to confront his accuser. According to Mr. Strange, a curtain was hung in the hearing room to shield her from his view. And although the panelists were permitted to question witnesses, there was no cross-examination.

Adversarial questioning is a crucial check on false or misleading testimony. Example: During the hearing, the accuser claimed three times that immediately after the disputed sexual encounter, Mr. Strange locked her in his bedroom. That sounds menacing, but Mr. Strange's version, which was not told at the proceeding, is that he wasn't locking her in but locking himself out. He told me that she had "started freaking out" and refused to say what was wrong. "I told her, 'I'm going to get my keys. I'm going to go out of the room and close the door and lock it behind me. I'm going to take the key that operates my bedroom door, and I'm going to put it underneath the door, so that way you have complete control.' "

Six weeks before the university hearing, the accuser had testified in a proper courtroom, when she petitioned successfully for a restraining order. Under questioning from Mr. Strange's lawyer, Davis Whittelsey, she acknowledged under oath that Mr. Strange's account was truthful: "I'm not saying I was locked up in there and had no way out or anything. I'm just saying the bedroom was locked."

With criminal charges pending, Mr. Strange chose not to testify at the university proceeding. Auburn bylaws stipulate that "failure of the student [charged with an offense] to make a statement or to answer any or all questions shall not be considered in the determinate on [sic] of guilt or innocence." Yet Mr. Dodge and the other panelists raised no objection when the accuser, in her closing statement, emphasized that Mr. Strange "never talked about the facts of this case."

Although that statement seems improper, it was consistent with the logic of the proceeding. The preponderance-of-evidence standard enfeebles the right to remain silent. In a she-said-he-said case, the adversaries start on equal footing, so that some shred of additional evidence is necessary to convict. But when it's she-said-he-kept-silent, she begins with an overwhelming evidentiary advantage. In a federal civil lawsuit, which uses the same standard, jurors are permitted to draw adverse inferences from a defendant's refusal to testify.

Further, the right against self-incrimination is indivisible from the right to counsel. Even in a civil case, a courtroom defendant who declines to testify has the benefit of an attorney to make arguments on his behalf. By gagging Mr. Strange's lawyer, Auburn made it impossible for the defendant to remain silent without forfeiting the ability to mount an effective defense.

To be sure, the accuser's lawyer wasn't allowed to speak either. But he prejudiced the "private and confidential" proceeding merely by stating his name: Michael Short, the city attorney, who was prosecuting Mr. Strange on the simple-assault charge.

This story is almost as typical of American universities as it is outrageous. I described the hearing in detail to Mr. Shibley of the Foundation for Individual Rights in Education. He told me the only element that struck him as unusual was the prosecutor's presence in the hearing room.

Yet apart from the loose standard of proof, none of Auburn's procedural infirmities are expressly mandated by the Education Department. If the due-process requirement is more than an empty promise, the department will withhold Auburn's federal funding until the university revamps its procedures and makes restitution to Mr. Strange.

It would be better still if universities could get out of the discipline business altogether, except for scholarly offenses like plagiarism, cheating and falsification of data. Ordinary civil and criminal courts are immensely more competent to adjudicate allegations of sexual harassment and violent crime, in open proceedings subject to appellate review, without trampling the rights of the accused.

Mr. Strange's banishment from Auburn didn't become official until the Discipline Committee's verdict had been rubber-stamped by Ainsley Carry, then vice president for student affairs, and Jay Gogue, the university president. That was Feb. 2, 2012, the day before the grand jury cleared Mr. Strange of the charge for which he was expelled. He had to stay in Auburn—but away from campus—for 3½ months, until the misdemeanor charge evaporated amid the accuser's truancy. He now lives with his parents in Spartanburg, S.C., and is a senior at the University of South Carolina Upstate. He graduates next May.


Untrained staff are fine to teach in British schools, says Ofsted chief Sir Michael Wilshaw

Headteachers should be allowed to hire untrained staff if they are the right candidates for the school, according to the schools inspector.

Sir Michael Wilshaw, Ofsted’s chief schools inspector, he had not met a headteacher who had not hired an unqualified member of staff.

Sir Michael, who used to be headteacher of a comprehensive in East London, told BBC1's Sunday Politics programme a headteacher's job was “to make sure they get accredited as soon as possible and come up to scratch in the class room”.

Asked if he supported the use of unqualified teachers, he said: “Yes I do. I have done it. If I could not get a maths teacher, or a physics teacher, or a modern languages teacher, and I thought someone straight out of university without qualified teacher status could communicate with youngsters I would get that person into the classroom and get them accredited if they deliver the goods.”

Sir Michael also that he wanted Ofsted to take a closer eye on schools between inspections, adding that “sometimes we don’t see a school for five or even seven years. That is wrong.

“My argument Ofsted should play a much greater part in monitoring the performance of schools between those inspections schedules.”

Sir Michael was speaking ahead of figures this week which will show rising numbers of primary schools that are effectively designated as “failing”.

As many as 700 primaries in England – almost one in 20, collectively teaching around 180,000 pupils – are likely to fall below new benchmarks drawn up to "raise the bar" in the state education system.

New league tables will show that the number of underperforming schools this year will exceed the 521 struggling primaries seen in 2012. It follows a decision to record reading and writing separately for the first time in headline results.

Sir Michael is also expected to propose this week a new system fo "national service" for teachers and heads in top schools to go to the worst regions and help to lift standards. The model is based on a successful programme in Shanghai, China.


Australia's classrooms among world's noisiest

Australia has some of the noisiest classrooms in the world and is wasting teaching time but experts agree a quiet class is not always a good thing.

An international study has found 43 per cent of Australian students reported "noise and disorder" as factors in their classrooms.

One-third said they had to "wait a long time for the students to quiet down" and 38 per cent said students "don't listen to what their teacher has to say".

Sue Thomson, director of educational monitoring and research at the Australian Council for Educational Research, said the results - higher than in almost all comparison countries - were a cause for concern.

"Not only does it make it harder for students to learn when they're in a noisy classroom … they also have the problem of the teacher spending 10 minutes extra with classroom discipline issues and quietening the class down," she said. "If you accumulate that over a year, it actually makes quite a difference."

But Michael Anderson, associate professor in education and social work at the University of Sydney said it was important for teachers to distinguish between productive noise and distracting noise. "Noise can be productive when it comes out of collaborative learning opportunities that the kids are involved in," he said.

Leonie Burfield, principal of St Bernard's Catholic Primary School in Botany, likes to hear noise coming from her classrooms.  "A good teacher can tell whether or not it's an on-task noise," she said.

The school has designed its classrooms with a range of different desk options so that collaboration is encouraged and students can choose their own learning style.

"You might see some children on the floor with lap desks, you might see some at individual tables," Ms Burfield said. "You'd see some children on lounges, other children might even be standing."

President of the Australian Association of Mathematics Teachers, Kim Beswick, said that she would like to hear more students discussing maths in class.

"I don't think noise has to be a negative thing," she said. "It only becomes negative when it's undermining the teaching."

She said many discipline problems stemmed from a lack of respect for teachers.

"In Australian culture, there is a lack of valuing of education relative to other countries," she said.

"The Australian community views making the AFL draft as a higher achievement than going to university and doing a PhD. So that's the sort of environment teachers have to operate in."


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