Justin Dillon and Matt Kaiser, partners at KaiserDillon PLLC in D.C., have represented dozens of students nationwide in campus sexual assault cases. Here, they write their opinion about the impact the boycott could have on other cases. — Susan Svrluga
The University of Minnesota football team’s recent failed boycott of their upcoming bowl game represents a terrible blow to those who care about due process on campus.
For a brief, shining moment, it seemed that finally, someone with a measure of power would be willing to stand up to what is often a deeply unfair sexual misconduct process on college campuses.
It was exciting to hear student athletes talking about due process. If the boycott had succeeded, it could have emboldened other students, whether bowl-bound athletes or people of similar stature, to consider standing up for their friends next time something like this happened.
Many schools advocated “bystander awareness” — basically the idea that when something bad is happening, good people should object to it and try to stop it. Being an active participant in what happens in the world around us is important; we all have an obligation to stop bad things when we can. That’s true whether the thing being stopped is a sexual assault or violation of someone’s rights by the government.
The problem with the Minnesota boycott isn’t really that the boycott failed. It’s that the Minnesota football players did not realize they’d picked the wrong case to stand up for.
There is a widely known phrase in the law that essentially defines this case: “Bad facts make bad law, and good facts make good law.” Having defended students at more than 50 colleges across the country and reviewed the extraordinarily detailed 80‑page investigative report prepared by the university’s Title IX office, the facts described there were uniquely horrifying.
University discipline is often unreliable; we don’t mean to suggest that the conclusions the school reached were correct. But what’s described in that report — whether or not it happened — is deeply troubling.
The details of what happened cannot be printed here. But what appears to have started out as a consensual encounter, and was found to be so by Minnesota’s Title IX office, eventually degenerated into something far worse. We will leave it to others to discuss whether what happened in this case is yet another example of the influence of porn on the behavior of young men. But what these students are alleged to have done is horrible.
Given how much media attention this case has received, that could be very bad for due process on campus.
The problem is that high-profile bad cases tend to drive bad laws.
The Jesse Matthew case in Virginia is perhaps the best recent example of this. Mr. Matthew attended, and was suspected of sexual assault at, two different Virginia colleges but managed to transfer or leave before anything could go on his record. He would eventually plead guilty to murdering two other college students long after he had dropped out of school, and is serving a life sentence.
In response to the Matthew case, Virginia passed one of the first “scarlet letter” laws in the country. It requires all colleges in Virginia to place a “prominent notation” on the transcript of any student who has been suspended for, expelled for, or withdraws while being investigated for “an offense involving sexual violence,” which can cover anything from rape to an unwanted bottom-pinching.
Never mind that Matthew found and murdered his two victims long after he had left college and that a transcript notation would have done nothing to stop him. He didn’t commit the murders because he was able to somehow get admitted to another school; he had dropped out before the killing. But his crimes, horrific as they are, whipped up sympathy for doing anything that could have hindered him.
Bad facts, as they so often do, made bad law.
New York soon followed suit and now requires a similar transcript note. Earlier this month, a bill introduced in the U.S. House of Representatives would make such notations federal law.
Though they are very different acts, and Matthew was found guilty while the Minnesota players haven’t been charged, the point remains: Bad cases are deeply hurtful to the cause of fairness on campus.
Yet such cases represent a vanishingly small percentage of the cases handled at campuses across the country on a day‑to-day basis.
The vast majority of campus sexual assault cases involve two people, both of whom have probably been drinking, in a room having sex. The question in these cases is often whether one person was too intoxicated to consent to sex. These cases aren’t about murder or abduction or rape at knife point; they’re often really just about alcohol abuse.
But just as what Jesse Matthew did drove the conversation in Virginia, there is a risk that what happened in Minnesota will drive the narrative there and potentially beyond.
We hope this doesn’t happen.
We hope that President-elect Donald Trump’s administration will do what many people hope it will do and roll back some of the worst abuses of the Education Department’s Office for Civil Rights.
What Minnesota’s Title IX office found happened to the young woman in Minnesota was horrific. Assuming that report is accurate, the university’s penalties seem fair.
What would not be fair, however, is for Minnesota or states like it to legislate on the basis of this case.
Extreme cases make extreme laws. The Minnesota case is no more representative of what happens in the average campus sexual assault case than Hannibal Lecter is representative of the typical gourmand.
By calling attention to a bad case, the Minnesota boycott draws scrutiny of exactly the wrong thing.