In an intriguing, and encouraging, recent pattern, publications beyond those associated with higher education or civil liberties have started paying attention to the dangerous diminution of due process on campus. Two pieces particularly stand out.
First, writing in American Prospect, Harvard law professor and retired federal judge Nancy Gertner vehemently denounced both the new Harvard sexual assault policy and the ideology that appears to have motivated it. Gertner described “the new Harvard regime” (which I had previously profiled) as “the worst of both worlds, the lowest standard of proof, coupled with the least protective procedures.”
Gertner expressed strong concern about the preponderance-of-evidence threshold, a “standard of proof, coupled with the media pressure, [which] effectively creates a presumption in favor of the . . . complainant.” And she also worried about Harvard’s decision (following guidance from the White House) to move away from disciplinary hearings in which the accused has a right to cross-examine at least some witnesses to an investigation conducted by a single investigator. This approach is even more problematic, Gertner noted, given that the Title IX office, which “has every incentive to see the complaint entirely through the eyes of the complainant,” supervises the investigator’s performance.
Gertner’s piece also is worth noting because of her background (as a strong feminist and a leading feminist theorist of the law) and her recollections of how some of her one-time allies reacted when she agreed to represent an innocent male student accused of rape. “When I explained why [she represented the student], including the fact that I believed he was innocent, a demonstrator yelled, ‘That is irrelevant!’ The experience was chilling; to the picketers, a wrongful conviction and imprisonment simply did not matter.”
Gertner still believes that universities can, at least in theory, adequately adjudicate sexual assault cases; I’m very dubious. But in either case, her article is a must-read.
So too is a new piece in the New York Review of Booksby Zoë Heller. Like Gertner, Heller writes from a feminist perspective; and like Gertner, she finds the new procedures wanting. And like Gertner, Heller worries that too many victims’ rights advocates have adopted an “ends-justifies-the-means calculus” that ignores due process concerns.
Heller starts with the Dear Colleague Letter, accurately noting that its use of the phrase “victim-centered” unintentionally demonstrated how “the new rules go beyond insisting on fair and equal treatment for sexual assault complainants. They effectively cancel the presumption of a defendant’s innocence, and replace it with the presumption of a complainant’s victimhood.”
Heller also goes further than Gertner, in expressing doubt that Title IX ever should have justified college investigations of sexual assault. This approach, she reasonably observes, creates “a preposterous situation wherein rape is characterized—and punished—by college authorities principally as an infringement of a student’s right to equal educational opportunity. This is rather like having a group of train conductors prosecute the rape of a female commuter, on the basis that the crime violates her equal right to use public transport.” Heller concludes that the hostility to campus due process—especially when coupled with the new efforts to write “affirmative consent” into state laws, but as applied only to college students—will backfire on feminism, creating an impression that women can’t be trusted with their sexual autonomy.
Contrast the well-reasoned analyses of Gertner and Heller with that of another prominent feminist intellectual, Columbia professor Suzanne Goldberg. Goldberg helped develop her school’s due process-unfriendly new sexual assault policies, and she stands by her efforts. At Columbia, to review, the university denies the accused student the right to cross-examine his accuser or to receive meaningful discovery, allows conviction if only two of the three panelists are 50.01 percent sure the accused student is guilty, and permits punishment of an accused student even if the panel deems him not culpable.
In an interview with the New York Times, Goldberg defended Columbia’s denial of basic due process on grounds that the school’s goal is educational, not punitive. “I think that any university students who engage with a disciplinary process on these issues learn a lot,” she remarked.
The idea that an Ivy League student needs to “engage with a disciplinary process” before understanding that rape is wrong is rather hard to believe. The only thing that a student who might “engage with a disciplinary process on these issues” at Columbia would learn is how important procedural protections are. And Columbia now “teaches” that “lesson” by denying accused students a fair shake. Somehow I doubt that’s the lesson Goldberg has in mind.