Campus Due Process, Obama-Style

In this
week’s Chronicle of Higher Education, Joseph Cohn, director of policy at
FIRE, summarizes
the due process implications of a letter sent to colleges and universities last
April by the Department of Education’s Office for Civil Rights. As was widely
reported at the time, the letter instructs schools to adopt the lowest standard
of proof in our judicial system, preponderance of the evidence, in cases of
alleged sexual misconduct, ranging from harassment to rape.

During
the Bush Administration, Cohn notes, colleges enjoyed greater flexibility in
their proceedings, and the Office of Civil Rights accepted a wide variety of
standards among institutions.  The new directive, signed by Obama
appointee Russlyn Ali, allows little latitude.
 

Supporters
have defended the lower standard of proof by citing civil lawsuits that also
rely on a preponderance outcome, but the elements of civil lawsuits that are
missing from campus hearings are worth listing:

  • Civil
    trials have impartial, legally-trained judges; campus hearings often rely on “a
    panel of faculty, students, and/or administrators.”
  • In civil
    cases, either party may demand a jury; in campus hearings, the option isn’t
    available.
  • In civil
    cases, parties have right to counsel; in campus hearings, “parties to these
    hearings frequently have no right to counsel.”
  • In campus hearings, “rules of evidence don’t apply,” and witnesses “are usually
    not placed under oath.”

According
to Cohn, of 198 colleges ranked by U.S. News & World Report, 30
institutions so far have complied.

This is a
travesty of due process, but it pleases advocacy groups such as the Women’s
Sports Foundation, the Association of Title IX Administrators, and Wendy Murphy
(remember the Duke Lacrosse Scandal?), all of whom signed a
statement
in support of the letter. One particular sentence in the support
statement indicates clearly why the new standard is a dangerous one.  It
reads: “The preponderance standard is the only equitable choice under Title IX
as it avoids the presumption, inherent in a higher standard of proof, that the
word of a victim is less weighty than the word of an accused individual’s
denial.”

Note the
acceptance of victim status for one party before the respective “words” have
even been given.  In some cases, of course, there will be physical
evidence of assault, but in other cases, we have precisely a contest of words
alone.  With the stakes so high for the accused, should the accuser’s
accusation be as “weighty” as the accused’s denial?  Yes, according to
these groups and the Obama Administration, and they dress it up in a language
of “equity.”

Mark Bauerlein

Mark Bauerlein is a professor emeritus of English at Emory University and an editor at First Things, where he hosts a podcast twice a week. He is the author of five books, including The Dumbest Generation Grows Up: From Stupefied Youth to Dangerous Adults.

One thought on “Campus Due Process, Obama-Style”

  1. I know about these intramural panels that adjudicate guilt and innocence inside college campuses. But do these adjudications preclude a day in court?
    If found guilty, or liable, by a jury of my college classmates, teachers, and administrators, can’t someone haul all their rear ends in a real court with real jurisdiction, real rules of evidence, and real accountability, and hold them responsible for their intramural judgment?
    Or do you waive that right to a day in court merely by enrolling in classes?

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