Due process returns to campus
In decades past, amid conservative calls for new laws to regulate “morality,” progressives frequently argued that our private bedrooms were no place for the government. Yet if you are a student on a college campus in modern America, if you ask someone over to “Netflix and chill,” you better make sure you make enough on the couch for your second guest, the federal government.
Starting in 2011, new rules by the federal Department of Education’s Office for Civil Rights strong-armed colleges into regulating sexual activities by their students. Under Title IX, a law originally passed in 1972 to deal with gender discrimination in public education, President Barack Obama’s administration unilaterally decreed new procedures for how colleges adjudicate sex cases on campus.
New OCR guidelines dictat- that in cases dealing with sex, universities lower the standard of proof to one of a “preponderance of evidence,” or anything greater than 50% probability, rather than the traditional “clear and convincing” standard.
In many cases, students or professors accused of sexual impropriety are denied basic constitutional due process rights; they may be denied legal counsel, the right to cross-examine their accusers, and the right to impartial fact-finding. Instead, colleges may use a “single investigaroom tor” model, making one individual the judge, jury and executioner when a crime of sexual misconduct is alleged. According to a recent study by the Foundation for Individual Rights in Education, nearly half of America’s universities require that these factfinders be impartial, and nearly three-quarters of the nation’s top schools have no presumption of innocence in disciplinary matters.
Last week, Secretary of Education Betsy DeVos aned
nounced a new process that would alter some of the Obama era’s Title IX guidelines, arguing that protecting due process for the accused is “the foundation of any system of justice that seeks a fair outcome.”
Naturally, DeVos was immediately charged with “blaming the victim” in campus sex cases, making it easier for men who assault women to walk away free of punishment. But many of her progressive critics are the same ones who would argue vehemently, for example, that defendants in murder or drug trials be granted all the legal protections available to them. Sexual assault is a heinous crime — but the heinousness of a crime increases the need for a fair trial.
Title IX hysteria has warped what students consider to be a “sexual” violation. A group of Harvard Law School faculty members challenging the university’s new Title IX rules say Harvard’s new definitions of misconduct “go way beyond accepted legal definitions of rape, sexual assault and sexual harassment.”
These new rules have produced some mind-boggling outcomes, ranging from the serious to the absurd. Male students have seen reputations and educational opportunities destroyed based on what they believed at the time to be consensual sex, only to later have a charge filed against them. According to aforementioned Harvard professors Jeannie Suk Gersen and her husband Jacob Gersen, “conduct classified as illegal” on college campuses “has grown substantially, and indeed, it plausibly covers almost all sex students are having today.”
And there is no shortage of ridiculous examples of where the new rules have gone wrong. After writing a newspaper article detailing “sexual paranoia” on campus, Northwestern professor Laura Kipnis was hit with a Title IX investigation on the basis of complaints made by two graduate students — one of whom argued Kipnis’ article had a “chilling effect” on students’ ability to report sexual misconduct. In July, Howard University law professor Reginald Robinson was found guilty and sentenced to sensitivity training after he included a hypothetical question about bikini waxing on one of his exams.
Just this week, an 18-year old man was arrested after being accused of entering a women’s dormitory on the University of WisconsinMadison campus and taking pictures of women in the restroom. Because he was arrested by police, he will likely go to trial, where he will have all the protections our Constitution affords alleged criminals. We should extend these basic rights to all suspects.