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Published July 24, 2011, 06:48 PM

UND Won't Reopen Case of Student Accused of Sexual Assault

The facts are these: A UND coed attending a frat party in December 2009 claimed to have been sexually assaulted, though she did not report it until several weeks later.

By: John P. Calver, Forum Communications

This article is the opinion of the writer

The July 15 edition of The Wall Street Journal carries an opinion column about an apparent injustice at the University of North Dakota, where two years ago a student was punished for an offense he may not have committed and who has since been denied, against the institution's own rules, his right to seek redress (WSJ, "Yes means yes - except on campus" by Harvey A. Silvergate, Page A15).

The facts are these: A UND coed attending a frat party in December 2009 claimed to have been sexually assaulted, though she did not report it until several weeks later. Ultimately, UND charged a student - call him Jones - with violating its student code on sexual misconduct (though he claimed the encounter was consensual), and a hearing before the Student Relations Committee found him guilty.

The Grand Forks Police Department continued its own investigation of the case after UND's hearing was finished. They declined to charge Jones with a crime, but they did charge his accuser with providing false information to law enforcement; they also claimed to have found a text message from her, sent days after the party, inviting Jones to a second encounter. The Grand Forks County District Court then issued a warrant for her arrest. To date, she has not responded to this charge, and her whereabouts are unknown.

Reopen case

Armed with this new information, Jones asked UND to reopen his case. It refused to do so, on the grounds that an "appeal" is precluded by the university's Code of Student Life if more than five days have elapsed since the initial hearing. What Jones had requested, however, was not an "appeal" but a "rehearing" - which the Code does allow (and without time limit) if substantial new information is discovered. But so far, UND still refuses to accommodate him.

We have come to expect this sort of imperiousness among the lynch mobs at Harvard and Duke, but not in the Plains states, where, supposedly, a more level-headed culture prevails. Yet now it seems that academic tyranny is rising even in our own backyard.

Why is UND so adamantly opposed to reopening the case?

I suspect it's because the campuses have become so uptight about sexual misconduct that they insist upon punishing it even if there is little evidence that it ever occurred. In the dialectic of what he said/she said, the campuses (which in any case adore playing the role of defenders of the weak) find it both safe and stylish to assume that "he" is the guilty party.

Feds complicit

And this prejudiced view is strongly encouraged by the federal Department of Education, which has imposed a new diktat intended to weaken the presumption of innocence in misconduct cases. In place of the "beyond reasonable doubt" rule, the DOE now says that colleges and universities that receive federal funds (i.e., virtually all of them) must adopt the "preponderance of evidence" rule. This means that accused persons can be convicted on a tilt of just 50.0l percent of the evidence - essentially a coin toss.

Lowest standard

Immediately after his conviction, Jones was expelled short of a degree, was fired from his job as a high school coach, was banned from setting foot on any public college campus in the state for three years, and was forced to bear the stigma of a sexual predator. No matter. Under the preponderance rule, UND's counsel claims that Jones received "all the process he was due." It even claims that the post-hearing evidence uncovered by the police is "unproven" and "not substantial new evidence."

So long as it bases its justice on the lowest possible standard of proof, can any accused person ever again expect a fair shake from UND?

As an alumnus, I am embarrassed. But I am also hopeful, because Jones' case has been taken up by the Foundation for Individual Rights in Education, a civil liberties group with a formidable record of success in countering academic despotism. I have no doubt that it will prevail in the present case and that, further, its victory will be a victory as well for the real interests of UND. If you love justice and want to help, send FIRE a check.

Much of the text above is distilled from the correspondence between FIRE and UND. These exchanges can be found on FIRE's website.

Calvert is a retired college educator. Email johnpcalvert@aol.com.