What’s good for the goose isn’t good for the gander after all.
thefireorg: GRAND FORKS, N.D., July 15, 2011—In a stark demonstration of the failure of campus judicial procedures, the University of North Dakota (UND) has found a student guilty of sexual assault despite the fact that local police refused to charge him with a crime and instead charged his accuser for lying about the incident. Former student Caleb Warner has been banned by UND from stepping foot on any state public campus for three years. Meanwhile, his accuser has been wanted by the Grand Forks Sheriff’s Department for more than a year on the charge of making a false report to law enforcement.
If you think what you have read is a report from the Onion, unfortunately you are sadly mistaken as the student who to date has not been allowed to return to campus or any other state public campus, seeks remedy at the hands of the UND, which effectively has left him in limbo and at the mercy of the police who have refused to charge him and an accuser that the police has already charged for lying.
President of FIRE, Foundation for Individual rights in Education, Greg Kukianoff, whom Mr Caleb has sought remedy from issued the following statement:
“FIRE has long warned that the ill-considered and biased policies and procedures used by university courts do profound injustice to students. Caleb Warner’s accuser has been charged with lying to the police about the facts, but if even this isn’t enough to reopen the case, what hope does anyone at UND have for a fair hearing?”
What chance at a fair hearing? Perhaps none if the following below is indicative:
The incident in question took place on the night of December 13, 2009. Sometime before February 9, 2010, Warner’s accuser reported an allegation of sexual assault to the university and the Grand Forks Police Department. UND held a hearing for Warner on February 11, 2010, and informed him on February 16 that he had been found guilty of “Violations of Criminal or Civil Laws, Sexual Assault, and Interference [with members of the university community].”
In finding Warner guilty, UND used the weak “preponderance of the evidence” standard (50.01% certainty) to determine guilt or innocence—an evidentiary standard recently imposed upon every federally funded college in the country under a new regulation from the federal Department of Education’s Office for Civil Rights.
FIRE has led the opposition to this unwise federal mandate, warning that it would likely lead to great injustice for those accused of sexually related offenses. In today’s Wall Street Journal, FIRE Board Chairman Harvey Silverglate explains that this new requirement essentially orders universities “to scrap fundamental fairness in campus disciplinary procedures for adjudicating claims of sexual assault or harassment.”
What has complicated matters is the fact the fact that despite what the university found, the police on the other hand found other mitigating facts to discount the claim that Mr Warner’s accuser had indeed been forthright as to how events actually unfolded.
Despite a warrant for the accuser to appear, a year she later she has yet to appear the university refuses to give Mr Warner another hearing, which has led him seeking the involvement of FIRE.
But it gets eerier. Pursuant to FIRE’s request for a fair hearing, the university then claims that it used the same evidence that the police used in arriving at its own guilty verdict. When reminded of the fact that Mr Warner’s accuser has yet to appear a year later pursuant to her warrant, the university argued that such a warrant was essentially meaningless.
Which raises the ultimate question, can this young man now sue the university for defamation of character, or can the university just argue it was following federal mandates? On another note, how would this law have been applied had it been a female that was accused of sexual assault and her male accuser had yet to react to a warrant or deposition?