Finally, Due Process Near for College Males

The proposed Title IX regulations released by Betsy DeVos would ensure a much fairer campus adjudication system—they’d ensure cross-examination (through a lawyer or advocate) of witnesses; access to all evidence and training material for both parties; and the presumption of innocence for the accused. It’s little wonder that groups committed to one-sided campus procedures have criticized the regulations, although other skeptical comments merit attention.

During the seven-plus years of debate about Title IX and campus sexual misconduct, Democratic legislators have made clear their lack of interest in ensuring that Title IX tribunals respect the due process of the accused. More than two dozen House and Senate Democrats condemned the new rules; only one, Representative Bobby Scott (D-Virginia), said he’d support any type of due process for the accused, and Scott did so as part of a statement suggesting that the DeVos regulations somehow went too far.

Multiple Democrats viewed the regulations as harmful to victims of sexual assault. Senator Dianne Feinstein (D-California) claimed they would “drown out the voices of victims in favor of their accusers.” Senator Jeanne Shaheen (D-New Hampshire) claimed that the proposed regulations would discourage survivors of sexual assault from reporting the crimes against them, but did not explain why. The likely 2019 House Speaker, Nancy Pelosi, curiously portrayed regulations as a document that “denies survivors due process.” (She didn’t say how.) Rep. Joe Kennedy falsely claimed that the regulations required cross-examination of the accuser by the accused, and refused to retract his false assertion when the Education Department’s press secretary pointed out his error.

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Multiple Democratic legislators suggested that due process protections for accused students amounted to protecting campus rapists—a position that would be inconceivable for liberal legislators to adopt in any other context. Rep. Raul Grijalva (D-Arizona) maintained that the regulations’ due process provisions would “mak[e] it easier to protect the perpetrators.” For Rep. Rosa DeLauro (D-Connecticut), the draft regulations showed how “Betsy DeVos is on the side of those accused rather than the victims.” Rep. Ann Kuster (D-New Hampshire) suggested that the regulations’ due process provisions would “make campuses less safe for all students.”

Mirroring an argument offered last year by Senator Patty Murray (D-Washington), Former Vice President Joe Biden claimed that the new regulations would “discourage sexual assault reporting.” He cited no evidence for the assertion that students who file Title IX complaints are even aware of the specifics of their campus procedures, much less that those procedures accounted for the accuser’s decision to report.

In perhaps the most remarkable irony among legislative reaction, Senator Bob Menendez—whose career survived because of the procedural protections he received as the accused party in his federal corruption trial—criticized the regulations. “Shame on you,” the New Jersey senator shamelessly told DeVos.

As Democratic legislators embraced the status quo, so too did accusers’ rights organizations and their representatives. Apocalyptic rhetoric emerged from organizations such as Know Your IX, SurvJustice, and No Red Tape. Know Your IX co-founder Dana Bolger took time away from her condemnation of Thanksgiving (“this holiday that glorifies colonialism & exploitation”) to complain about the regulation’s section noting that schools that treat accused students unfairly might violate Title IX in doing so. A Know Your IX “organizer” complained to CBS News about the unfairness of the regulations’ proposals for meaningful cross-examination and sharing all evidence from the investigation with both sides. Such procedures, she asserted, were “just unsafe.”

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Ex-Obama officials unsurprisingly attacked the proposed regulations, often in highly misleading ways that betrayed a lack of confidence in their own position. Ex-Obama Justice Department official Anurima Bhargava oddly envisioned the regulations “requiring schools to allow retraumatizing and unnecessary hurdles to be imposed on survivors (such as cross-examination at a live hearing) and telling schools that the accused must be believed throughout the grievance process — unless the survivor demonstrates otherwise by clear and convincing evidence.” Cross-examination is hardly “unnecessary” given its centrality to the pursuit of the truth and role in many court decisions in lawsuits from accused students.

Bhargava’s claim about clear and convincing is both a misreading of the regulations (which, in fact, don’t require clear and convincing) and a very, very strange description of the process. Does this ex-Justice Department official believe that America’s criminal justice process is wrong because it maintains that “the accused must be believed throughout the . . . process — unless the survivor demonstrates otherwise”? This sort of rhetoric once came only from the fringes of the far right. Now it passes for mainstream sentiments among progressives.

Finally, and also unsurprisingly, elements of the higher-ed establishment don’t like the proposed regulations. An Atlantic article by Adam Harris featured a string of complaints from higher-ed lawyers (many of whom, of course, have profited from the current, accuser-friendly, system). Taking another approach, NCHERM’s Brett Sokolow contended, “There’s this huge asymmetry between male responding parties who can afford lawyers and female reporting parties who can’t.” He offered no evidence that parents of accused male students are likelier to be wealthier than parents of accusing female students.

Amidst the cacophony of bad-faith interpretations and indifference to basic fairness, it can be easy to miss good-faith criticisms of the regulations. Janet Halley, for instance, expressed concerns about some aspects of the draft rule (the Crimson didn’t go into detail about her concerns, but it seems as if she is worried about the regulations’ definition of sexual harassment). Given the credibility she has as someone who spoke up for due process on multiple occasions over the past several years, whatever suggestions Halley makes deserve very strong consideration.

KC Johnson

KC Johnson

KC Johnson is a history professor at Brooklyn College and the City University of New York Graduate Center. He is the author, along with Stuart Taylor, of The Campus Rape Frenzy: The Attack on Due Process at America's Universities.

8 thoughts on “Finally, Due Process Near for College Males

  1. This is all well and good–due process being a bedrock Constitutional principle–but why aren’t colleges insisting that crimes are reported to the police for investigation and prosecution?

    Rape, attempted rape, sexual assault are serious crimes, and should be reported to the proper authorities. Issues of academic misconduct, e.g. cheating, plagiarism, are the stuff of college tribunals–not felonies and misdemeanors. As it is the colleges are setting up a form of double jeopardy by giving alleged victims two bites at the apple.

    1. A specific example that once came across my desk some years ago. A woman had become a lesbian and retroactively defined every prior sexual encounter with her boyfriend as a “rape.” The one that comes to mind, years later, was that he had “raped” her on the front lawn of the Chancelor’s lawn the prior spring — he’d walked her from her dorm across campus to there, he “raped” her there, and then walked her back. And “raped” her a dozen or so times afterwards….

      Now if she’d taken that to the police, it largely would depend on how tired the detective was and how professional she could be when her time was being wasted with something like this….

      That’s what’s not being said about this — it either stuff that neither cops nor courts would ever prosecute, or real rapes (and domestic violence) that the institution doesn’t want to see prosecuted for political reasons. Because of who the perp is…

      And it’s not uncommon for the campus kangaroo courts to prosecute stuff that the cops & courts have refused to prosecute, for a variety of reasons ranging from the actual facts to the refusal of the victim to prosecute — the campus courts are a squishy way to get around what are the very real due process protections of the accused.

      And then there was the case of the two varsity athletes out in California who were “fooling around” when some do-gooder reported him “abusing” her. Now my guess is that varsity athletes may tend to play a bit rougher than most kids — she’s probably stronger than most of the male students and he was a football player — but she was adamant that (a) it was consensual and (b) not abuse. They still kicked him out.

      I’ve seen courts do stupid things, but I don’t think a court would have done that….

  2. I just don’t understand the need for a new separate ‘justice’ system for college students. If a crime has been committed we have a system of courts, judges, police etc. already set up to handle it.

  3. There should be NO campus adjudication system for sexual assault. These matters should be referred to the police where they can be processed through our criminal justice, which affords due process rights to both the accused and the accuser.

    1. Agree 100%. The campus administration can take action based on any resulting felony as a definitional violation of the code of conduct. Universities are not setup to be in the legal business and to try is a waste of resources.

      I think by trying, they actually diminish the legitimacy of any criminal grievances.

  4. Why do university admininistrations get to “adjudicate” anything other than academic plagiarism or cheating?

    It is not the business of universities (especially public universities) to function in-place of the criminal justice system or get involved in personal relationships.

    Universities should no longer receive one penny of taxpayer funding, including student loan guarantees because these institutions no longer function in the best interest of the nation or its’ citizenry.

  5. Maybe they should all ask Emmett Till about the virtues of due process.

    DeVos doesn’t go far enough, false accusers need to be severely punished.

    In fact Title IX should be repealed entirely.

  6. I fear that we may have won a very Pyrrhic victory here — never forget that NCHERM’s Brett Sokolow is also NaBITA’s Brett Sokolow.

    NaBITA is the National Association of Behavioral Intervention Teams, and the Behavioral Intervention Teams are secretive star chambers who assess (and expel) students for what they might do in the future. (Think Tom Cruise’s 2002 movie Minority Report set not in 2054 but right now on an increasing number of college and university campi.)

    Hence, I fear, we will go from secretive kangaroo courts punishing young men for the harm they purportedly have done to a specific woman to even more secretive kangaroo courts punishing young men for an unspecified harm which they purportedly will do to some unspecified woman at some unspecified time in the future.

    I argue that this is similar to accusing a young woman of abusing a child she might give birth to in the future after having married a man she hasn’t even met yet — and forcing her to prove that she won’t. Yes, the BITs are that bad….

    At least now the accused young man is entitled to be told the “W’s” — the Who, What, Where, & When of what he’s accused of having done. Past tense as this is something that is alleged to have already happened, something which he can deny if it didn’t happen. Or didn’t happen as alleged, i.e the sex being consensual.

    And while it’s nearly impossible to do so, he still can attempt to prove that he didn’t do it.

    The BIT makes no pretense of offering him even that, it can’t because the BIT has absolutely no idea of what or where or when he purportedly will act violently in the future, nor whom his victim(s) will be — only that he inevitably will if not removed from campus.

    Worse, the BIT never bothers to even ask the accused student for his side of the story before passing judgement on him. That is worse than what we have right now and I fear that if the Title IX proceedings are cleaned up without the BITs being addressed, the accuser’s rights activists will simply pursue their victims through the BITs (where they already are well represented).

    And to the student whose reputation and future are destroyed, it’s largely a difference without a difference what the paperwork says. He’s still kicked out of college and lucky to get a part-time job at WalMart…

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