I write in response to Sarah Sakha’s response to my opinion piece demonstrating that Title IX proceedings are far less fair than those of the Honor Code. I have nothing to add to my original argument, which was based on an undisputed, factual comparison of the two sets of procedures. As Sakha herself wrote: “Ultimately, I agree with Berger’s overarching argument. Yes, the Honor Code Constitution presents stipulations far stricter than those presented by Title IX regulations.” In response to Sakha’s piece, I have three additional points.
First, Sakha writes that “the accused – and the guilty – in cases of sexual assault and harassment adjudicated at the University do not need to be afforded more rights ... Rather, the accusers – and the victims – need to be afforded more protections.” She later writes that “we need to reform Title IX procedures ... to make it more just towards the victims.” The problem with Sakha’s assertion is that she ignores a fundamental aspect of due process and a fair justice system, that the accused is considered innocent until proven guilty. She moreover explicitly argues for making Title IX proceedings biased and partial, and weighted to be “more just towards victims.” Protections and justice for victims ought to be achieved in the punishment of an individual found guilty at the conclusion of a fair process, not by making unfair the procedures used to arrive at that guilty verdict. As Judge F. Dennis Saylor wrote in an April 2016 ruling for a lawsuit by a Brandeis University student who alleged due process violations during a sexual misconduct hearing, “It is not enough simply to say that such changes [diminishing due process] are appropriate because victims of sexual assault have not always achieved justice in the past. Whether someone is a victim is a conclusion to be reached at the end of a fair process, not an assumption to be made at the beginning.”
There is no question that sexual misconduct is vastly more harmful than cheating on an exam. But that does not mean we should deny the accused, who have not yet been proven guilty, their fundamental rights to due process and equal, fair procedures. By analogy, in the criminal justice system, while murder is vastly more harmful than robbery, defendants in both cases receive the same due process protections. We would all find it outrageous if murder defendants received fewer due process protections because their alleged crime is far worse than robbery.
Second, the lawsuit I cite above is one of 185 lawsuits alleging due process violations in Title IX investigations that have been filed against colleges and universities since 2011 (when colleges first began changing and diminishing due process protections for Title IX cases), according to a database maintained by a group called Title IX for All. Only 15 similar lawsuits were filed in the two decades prior to 2011. This proliferation of credible, and successful, legal challenges reflects the brokenness of the new system and is one reason why I believe current Title IX procedures make it less likely, in fact, that some students will come forward with accusations. Indeed, one peer decided not to pursue a Title IX investigation because she thought that the procedural flaws could lead to long and painful civil litigation.
Third and finally, it is stunningly disingenuous for Sakha to have written that I compared and “create[d] parallels between” Honor Code violations and sexual misconduct. My article compares the procedures of the two systems, not the offenses they adjudicate. In fact, in the original piece, I twice reference “the seriousness of sexual misconduct,” and as Sakha and I both have written, our opinions on Title IX have been informed by our personal experiences with friends and peers at Princeton. It is precisely because I understand the gravity and lasting impacts of sexual misconduct that I strongly believe it is necessary to reform Princeton’s Title IX process so it serves all students fairly.
Allison Berger is a senior in the Economics department from Madison, N.J. She can be reached at alberger@princeton.edu.
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