By David French
Monday, July 17, 2017
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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