Politics moves from campus to Main Street. The next political attack is likely to be on due process—the foundation of Western justice itself. Much depends on which side of the current debate on campus sexual misconduct hearings wins. Does a person accused of sexual misconduct deserve due process in the investigation and hearing that determine his future? Or are traditions like a presumption of innocence and the right to cross-examination merely a way to retraumatize a “victim” who should be automatically believed and shielded? It comes down to individual rights versus social justice.
The conflict has a long and ideological past, which revolves around title IX of the Education Amendments Act of 1972; this measure prohibits schools that receive federal funds from sexually discriminating. Over time, the definitions of sexual discrimination and harassment within the provision have expanded dramatically and due process for anyone accused has eroded.
A 2011 “Dear Colleague” letter from the Obama administration was a pivot point. The letter instructed colleges to use Title IX to implement a much broader goal than simple nondiscrimination: “gender equity.” All students were to enjoy equivalent rights, benefits, obligations, and opportunities. This required more than equal treatment under school policies; it required privileged treatment for students who were considered to be part of an oppressed minority, such as women. The privileged treatment had profound implications for campus sexual misconduct hearings. Accusers, who were overwhelmingly female, were to be automatically believed. The accuseds, who were overwhelmingly male, were to be denied due process rights for fear of retraumatizing the accuser. Sometimes the accused did not even know the name of his accuser even though a “guilty” verdict could mean expulsion and the destruction of his career prospects.
With loose criteria of process and proof, complaints to the federal Office for Civil Rights under Title IX have increased fourfold over the past decade, from 17,724 (2000–10) to 80,739 (2011–20). Lawsuits against colleges brought by those accused have also soared. As of March 2021, accused students have filed more than 680 such lawsuits. According to the academic periodical Inside Higher Ed,
More than one-fourth of 305 Title IX claims analyzed in a 2015 study by United Educators (UE) were challenged by students who either filed lawsuits in the federal courts or lodged complaints through the Department of Education’s Office for Civil Rights (OCR). There’s a consensus among higher education and legal experts that students are increasingly claiming flawed hearings or unfair disciplinary sanctions as a result of procedural failings at their universities, said Jake Sapp, Title IX coordinator … at Austin College.
The courts increasingly agree. Andrew Miltenberg, an attorney who represents accused students, explained in a 2019 article, “We’re seeing, for the first time, in the last year or so, courts are starting to embrace the concept that there could be due process issues.” An April 22, 2021, report expands on Miltenberg’s point. Appellate Court Decisions for Allegations of Campus Due Process Violations, 2013–2020, conducted by Stop Abusive and Violent Environments (SAVE), summarizes twenty-three appellate court decisions in terms of the procedures by which the colleges handled allegations of sexual misconduct. A SAVE press release states the general consensus of these decisions. A broad range of due process protections are needed
on college campuses regarding adequate notice of the allegations, impartial and accurate investigations, disclosure of evidence to the accused, cross-examination, fair hearings, lack of conflict of interest among college officials, proper use of testimony, and institutional compliance with its own policies.
The appellate court decisions are particularly significant, because other courts in the same region will follow these rulings as a precedent. The appellate rulings cited in the SAVE report apply to colleges, public and private, in thirty-one states; 67 percent of all colleges are located within this territory. The very scope of the rulings could bring a sea change in whether or not an accused has due process in how campuses address sexual misconduct.
But there is a powerful obstacle: politics.
On May 6, 2020, Trump’s Department of Education changed Title IX to reverse Obama’s Dear Colleague letter by restoring due process. Those accused of harassment or assault would be able to question evidence and cross-examine accusers, for example. When the new regulation was enacted in August, then presidential candidate Joe Biden made a campaign promise to repeal it. He is making good on this promise, initiating the formal process known as “proposed rulemaking,” which includes public comments and debate.
Many colleges applaud Biden’s return to the social justice rallying cry of “Believe the Woman!,” which means “Deny Due Process!”; many campuses are ideologically committed to this social justice principle. Harvard is an example. A student periodical the Harvard Crimson notes that 77.6 percent of professors self-define as left-leaning, while only 2.9 percent call themselves conservative. Harvard exemplifies the unbalanced divide on this issue. Nevertheless, due process does not die without a struggle. In 2014, the Harvard Crimson noted that “twenty-eight Law School professors called for Harvard to withdraw its newly installed sexual harassment policy in a pointed open letter.” The school’s bureaucracy stood firm behind social justice. Former Harvard College dean Harry Lewis explained that this is the basic point of the school: to advance radical ideas. “It’s almost by definition anti-preservationist,” he said.
The current and coming fury of debate is about individual rights versus collective “justice,” which is also known as identity politics. It is about court rulings and Western justice versus bureaucrats and ideology.
What it is not about is male versus female, although it is often cast in this manner. Due process is neither male nor female in its protection; it is a human right. Those who smother the issue in gender terms are making false assumptions. They assume that men perpetrate sexual abuse and women are victimized, for example, when the National Sexual Violence Resource Center estimates that “15% of college men are victims of forced sex.” They also assume bureaucracy protects women and victims better than individual rights, individual self-control.
If due process loses this debate, if bureaucracy wins, a chilling observation within the SAVE report will become a campus norm. Oberlin College’s website, the report observes, boasts of a 100 percent conviction rate for sexual misconduct cases. In other words, to be accused is to be convicted. Oberlin considers this to be a plus, to be an advertising point.
The path to power in our society runs through the campus. The lawmakers, academics, lawyers, experts, business executives, and other professionals who control so much of society began as students. The reality in colleges today becomes reality on the streets tomorrow. Both sexual assault and due process must be taken seriously. But this is precisely what due process does. Holding every case up against evidence and fair process means taking every accusation of sexual misconduct seriously; it means taking human rights seriously. They do not endanger the individual safety of women or men. They are its greatest protection.