The National Association of College and University Attorneys is advising university administrators to destroy emails that could potentially change the outcome of campus sexual misconduct lawsuits.
The association’s suggestion was spotted by KC Johnson, a professor at Brooklyn College who had previously studied the Duke lacrosse team rape case. The advice, which came from a NACUA paper, seems to argue that deleting emails relating to campus sexual misconduct would make litigation easier for universities.
“The closest comparison would be if, in the criminal justice process, the police had a policy of routinely shredding portions of their files that might indicate that the wrong person was arrested,” Johnson said.
This advice from NACUA publication, for universities re anticipating due process lawsuits, isn't exactly reassuring pic.twitter.com/2yH5yrcZlC
— KC Johnson (@kcjohnson9) August 4, 2016
The document argues that retaining all emails pertaining to sexual misconduct cases could possibly introduce contradictory evidence in legal hearings, and thus, make it harder to convict accused assailants.
“Many emails—as well as staff notes that precede an investigation report, notes of hearing participants during a disciplinary hearing, drafts of hearing outcome reports, and other such working papers—might actually prove very useful to a plaintiff’s lawyer [representing an accused student] who may wish to argue that the institution acted in an inconsistent manner or that assertions of institutional witnesses are inconsistent with contemporaneous working drafts,” it reads.
“For that reason, it would be prudent to retain a ‘master set’ of all final reports, proceedings, and outcome documents, and promptly destroy the various preliminary and personal documents,” the paper continues. “That way, the institution will have a single, consistent record that is not contradicted or undermined by the institution’s own files.”
Adam Goldstein, an attorney from Student Press Law Center (SPLC), called the advice morally “wrong.”
“It’s not legal advice, it’s not something that hopefully anybody would put in the hands of a university administrator and say ‘Go to town!’” Despite this, Goldstein contends that the paper encourages universities to “write policies into sexual misconduct adjudications that sublimate the civil rights of its participants to the litigation aversion of the institution,” he said.
According to Goldstein, the advice is comparable to a “newsletter for doctors suggesting, ‘In many liver surgeries, the gall bladder contains evidence of malpractice, so during liver operations, consider whether your patient really needs a gall bladder.’ … If I was a patient, I would be pretty nervous.”
Tom Ciccotta is a libertarian who writes about Free Speech and Intellectual Diversity for Breitbart. You can follow him on Twitter @tciccotta or email him at firstname.lastname@example.org