Boston Herald

Courts rejecting college sexual abuse bias

- By BETSY McCAUGHEY Betsy McCaughey is a senior fellow at the London Center for Policy Research and a former lieutenant governor of New York.

Students wrongly accused of sexual misconduct by campus disciplina­ry systems stacked in favor of the accuser are winning vindicatio­n in court. Judges are tossing out the life-ruining punishment­s meted out by these “guilty until proven innocent” campus tribunals.

This month, Judge Amul Thapar of the federal 6th Circuit appeals court declared that students charged with sexual misconduct have a right to due process, including a courtroom-like hearing, where the both the accuser and the accused are crossexami­ned. Thapar’s ruling describes cross-examinatio­n as “the greatest legal engine ever invented” for “uncovering the truth.”

Of course, that’s not how it works on most campuses today, where the accuser is prematurel­y deemed a “survivor” before any evidence of a crime and doesn’t have to face the accused.

Challenges to these Kafkaesque proceeding­s are heading to the Supreme Court.

Across the country, judges are skewering colleges for tilting the system to favor accusers.

In fact, courts are having a bigger impact so far than Secretary of Education Betsy DeVos, whose proposed reforms of sexual assault proceeding­s nibble around the edges without actually guaranteei­ng that accused students will be presumed innocent until proven guilty.

Since 2011, more than 300 students have gone to court, claiming campus administra­tors wrongfully discipline­d them. The colleges were implementi­ng Obama administra­tion guidelines regarding sexual misconduct. These guidelines discourage­d colleges from subjecting the accuser to questionin­g. The guidelines also set the standard of proof at the lowest possible level, a mere prepondera­nce of evidence. In short, 50 percent plus a feather. On that meager basis, a student could face expulsion and be tarred for life as a sexual predator.

Last year, DeVos rescinded the Obama-era guidelines and promised reforms. But so far the real action is in the courts.

On Sept. 7, Thapar issued a blockbuste­r ruling for fairness. The case involved two students at the University of Michigan who had sex in their dorm after a party. The male student said it was consensual. The female student claimed she was too drunk to consent, and accused him of sexual assault. The university sided with her and forced him to leave the school. But the court ruled the university erred by refusing to allow the female student to be crossexami­ned. Coddling the accuser by shielding her from questionin­g violated the accused’s due process rights. The University of Michigan is appealing, teeing the case up for a Supreme Court battle.

A year earlier, the 6th Circuit ruled in favor of a University of Cincinnati graduate student accused of assaulting a female student. She failed to show up for a campus hearing, but the university still suspended the male student for a year. That suspension, said the court, violated his due process right to a fair hearing.

State courts are also rejecting campus kangaroo courts. A California appeals court ruled recently that Claremont McKenna College, though private, is obligated to provide due process and assess who is telling the truth in any “he said, she said” sexual misconduct complaint. The college has to allow cross-examinatio­n so factfinder­s can observe the “demeanor” of each party. The female accuser in that case should have been required to answer questions posed directly or indirectly by the accused man, said Judge Helen Bendix, citing the 6th Circuit’s position.

These rulings are good news for college students. In the future, they’ll face less risk of having their lives derailed by a false accusation and the crazy notion that all accusers should never be doubted.

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