National Review Online
Friday, September 08, 2017
Yesterday, Secretary of Education Betsy DeVos took a
welcome step toward restoring a measure of justice and sanity to American
higher education. In a speech at George Mason University — and in a follow-up
interview with CBS News — DeVos indicated that she intended to withdraw Obama
administration “guidance” on adjudicating sexual-assault claims on campus and
replace it with a regulatory rulemaking process that is intended to protect
students from sexual assault and preserve
essential civil liberties.
It’s hard to overstate the legal and moral necessity of
this action. First, let’s deal with the law. In 2011, the Obama administration
issued a now-infamous “Dear Colleague” letter that required universities to
lower the burden of proof in sexual-assault adjudication to a “preponderance of
the evidence” standard (50.1 percent probability) without also adequately
preserving essential due-process rights such as access to counsel, access to
available evidence, and full and fair cross-examination of witnesses. At the
same time, the administration commenced dozens of open-ended investigations of
universities — acting on claims that they were insufficiently committed to
protecting women from rape and applying the new guidance to evaluate university
policies.
These actions were fundamentally lawless. No American
administration has the ability to rewrite the law by merely issuing a letter.
At the very least, the Obama administration should have conducted a
notice-and-comment regulatory rulemaking process in accordance with the
Administrative Procedure Act. Even then, the regulation would still have to be
consistent with governing federal statutes and comply with the Constitution.
But Obama’s Department of Education ignored these steps and instead violated
the APA, Title IX, and the
Constitution in an ideologically motivated trifecta of campus tyranny.
The result was entirely predictable. Campuses, fearing
the loss of federal funds and pushed by their own internal constituencies who pushed
ludicrous and discredited claims that up to one in five female students would
be sexually assaulted during college, created a vast, morally outrageous, and
oppressive system of kangaroo courts. According to a study released this week
by the Foundation for Individual Rights in Education, 73.6 percent of America’s
top universities don’t guarantee students a presumption of innocence, fewer
than half require that fact-finders be impartial, and a full 58.5 percent of
institutions don’t “provide students with a meaningful opportunity to
cross-examine witnesses” in cases of sexual misconduct. And this is a partial
list of university legal failures. All told, 45 of the 53 rated colleges
received a “D” or “F” for their commitment to due process.
But those are dry statistics. The individual stories are
harrowing, and DeVos provided startling examples in her speech. Schools have
punished students even though the alleged “victim” claimed that nothing
happened. They’ve investigated and punished professors and students for
engaging in First Amendment–protected speech. They’ve refused to allow students
to introduce exculpatory evidence. And they’re facing an avalanche of lawsuits
from aggrieved students as a result. Brooklyn College professor K. C. Johnson
has compiled a list of at least 60 university litigation defeats since the
Obama administration issued its “Dear Colleague” letter, and the list often
expands by the week.
Schools have been caught between the hammer of an
overzealous and lawless Department of Education and the anvil of private
litigation. Their choice? Follow the Constitution and potentially lose
government funding. Comply with Obama-administration directives and potentially
face the wrath of a federal judge.
DeVos is bringing order to the chaos. By commencing a
regulatory rulemaking process, she’s actually following the law. Any resulting
regulations will be in compliance with the Administrative Procedure Act, and
the public will have had ample opportunity to point out and protest any
constitutional or conceptual flaws. And if her proposed regulations track the
goals she outlined in her speech, they’ll restore the proper constitutional
balance to sexual-assault adjudications.
Rape and sexual assault are serious crimes, but no
accusation is serious enough to strip from accused students the most basic
constitutional protections. Take, for example, the right to cross-examine
witnesses. As Justice Stevens noted in United
States v. Salerno, “Even if one does not completely agree with Wigmore’s
assertion that cross examination is ‘beyond any doubt the greatest legal engine
ever invented for the discovery of truth,’ One must admit that in the Anglo
American legal system cross examination is the principal means of undermining
the credibility of a witness whose testimony is false or inaccurate.” Can any
judicial system be “just” if it deprives the accused of this most basic right?
While rape and sexual assault are best adjudicated in court,
any campus process must, at a minimum, preserve all the traditional due-process protections — including the right
to counsel, the right to an impartial judge and jury, the right to a full and
fair notice of the charges against the accused, and the right to see the
evidence in the case. Anything less stacks the deck against the accused, and
anything less exposes colleges to liability for violating the constitutional
rights of its students.
DeVos has commenced the necessary, lawful regulatory
process. She must now resolutely see it through to its proper conclusion.
Already, hysterical voices are accusing her of being “pro-rape,” but protecting
due process is no more “pro-rape” than permitting cross-examination in the most
serious criminal trials is “pro-murder.” The Constitution has already
recognized the necessary rights. It is now up to Secretary DeVos to articulate
and protect them. She is off to a promising start.
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