Will it have the will to restore due process for the accused?
By David French
National Review Online
Last week, while the most in the media fixed their eyes on Donald Trump Jr., far-left activists geared up for a different kind of assault on the Trump administration: a full-court press to maintain a series of unlawful Obama-era policies that have stripped young men of their constitutional rights, ruined lives, and fostered politically correct (but factually challenged) hysteria on campuses from coast to coast. At issue is the Obama administration’s April 2011 “Dear Colleague” letter, a document that skipped the legally mandated regulatory rulemaking process to require colleges to adjudicate campus sexual-assault cases under a “preponderance of the evidence” standard without also securing adequate due-process rights for the accused.
Why do such a thing? Because campus activists (and Obama-administration allies) were convinced that colleges were in the middle of a “rape crisis.” Shoddy studies conducted with expansive definitions of sexual assault convinced the Left that an astounding 20 percent of college women are assaulted during their campus years, rendering the university a virtual war zone for women. It’s a rate that contradicts Bureau of Justice statistics showing that women are safer on campus than off, and that the real rate of sexual violence on campus isn’t one in five but closer to 6.1 per 1,000, a number that had been trending downward for 14 years as of 2013, the last year covered in the BJS report.
But no matter, the fake crisis demanded extreme measures, and the result was a series of federally mandated kangaroo courts. The goal was to create a summary procedure that permitted wronged women to safely and easily report their abusers and remove them from campus. The actual result was that poorly trained campus officials stepped into a miasma of drunken hookups and broken hearts. By 2016, colleges were buffeted from two directions — by an activist Democratic administration that demanded ever-more-decisive actions to address the alleged “crisis” and by mushrooming lawsuits brought by aggrieved male students, young men who were often forced off campus on the flimsiest of charges.
Last week, Education Secretary Betsy DeVos signaled that help — or at least due process — was on the way.
After a series of meetings with accused students, accusers, and campus officials, she rightly noted that “a system without due process ultimately serves no one in the end.” And in a letter to Democratic senator Patty Murray, she also rightly faulted the Obama administration for descending “into a pattern of overreaching, of setting out to punish and embarrass institutions rather than work with them to correct civil rights violations and of ignoring public input prior to issuing new rules.”
The new head of the education department’s Office for Civil Rights, Candice Jackson, even went so far as to note that most campus rape cases involve the cloudiest of fact patterns, telling the New York Times, “The accusations — 90 percent of them — fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’”
She has since apologized for being “flippant,” but her words revealed that she understands the core truths of campus prosecutions. The cases aren’t easy, alcohol is a near-constant factor, and there is high cost to accused and accuser alike.
So, what should the Trump administration do? In the short term, it should rescind the Obama administration’s 2011 “Dear Colleague” letter. As noted above, it circumvented the legally required rulemaking process and was thus unlawful the moment it was issued. It has caused extraordinary confusion and campus heartbreak. Rescind it. Now.
Next, DeVos should ideally write a regulation requiring federally funded universities to refer prosecutions for criminal offenses to criminal courts and claims of civil damages to civil courts. Sexual assault is a serious, life-altering event for a victim. It’s a serious, life-altering accusation for the accused. Our nation has constructed criminal and civil justice systems that are designed from the ground up to provide due process for the accused and to provide substantial justice for victims who can prove their case.
Colleges should be responding to the results of court cases rather than incompetently creating parallel justice systems. In other words, if a student is convicted in a criminal case or found liable in a civil case, then the college can and should remove the accused student from campus.
If the administration doesn’t have the will to require colleges to rely on real courts, at the very least it should require federally funded universities to provide an equivalent array of due-process protections. That means a right to counsel and full rights of discovery, including the right to take depositions, the right to see all relevant evidence, and the right to confront your accuser. That means making sure that investigators aren’t adjudicators and tribunals are truly impartial. In other words, if universities want to be in the legal business, make them do it right.
The Left will fight, hard, to preserve the Obama administration’s “guidance.” Indeed, for many advocates, Obama’s policies were valuable not just as a blunt instrument against accused students but also as a concrete means of advancing a particular cultural narrative against so-called toxic masculinity. Yes, there are a few predatory men, and they should be punished with the full force of the law, but the real crisis on campus isn’t criminal. It’s moral. An alcohol-soaked hookup culture is bound to cloud minds and break hearts.
Kangaroo courts aren’t the answer for crises of character. Betsy DeVos is right to reexamine the radical policies of the failed recent past.
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