A Lesson in Due Process on Campus

By Christopher J. Scalia

Sunday, January 24, 2021

 

It’s no surprise that President Biden seeks to undo many rules and regulations issued by the Trump administration, including the Department of Education’s new rules governing hearings for college students accused of sexual assault. Before doing so, however, the Biden team should consider issues raised by a recent Washington Post story, which unwittingly reflects an inconsistent view of what constitutes fairness for accused students.

 

The story in question is a front-page account of one black cadet’s experiences with racism at the Virginia Military Institute, focusing on two events in Rafael Jenkins’s time at VMI. The first is horrifying: During “hell week” — the grueling training program that new cadets undergo before classes begin — Jenkins avoided reciting  the names of alumni who had died fighting for the Confederacy. According to the Post, a white cadet confronted Jenkins, “got up in his face and said firmly in his ear: ‘Jenkins, if you don’t sound off, I’m going to lynch you . . . and use your dead corpse as a punching bag.’” That cadet was suspended from the school.

 

The second episode, which led to Jenkins’s own departure from VMI, is where the Post runs into problems.

 

Toward the end of his freshman year, Jenkins was called before the honor court on charges that he cheated during an exam; the cadet members of the court found him guilty by a 6–1 vote. The paper catalogues several problems with the hearing; as a former faculty adviser to a college honor court, I would have advised against some of the decisions VMI’s court made. But other complaints from the Post ring hollow.

 

Foremost among those is the suggestion that the honor court’s nonunanimous policy is unfair. According to the story, “Unanimous jury verdicts have long been considered constitutionally required in federal courts for serious crimes. In April, the Supreme Court ruled that unanimity is required in such cases for state courts, too, and said that non-unanimous jury verdicts were rooted in Jim Crow racial discrimination laws.”

 

Although the Post implies that someone accused of cheating on an exam deserves the same protection as someone accused of the “serious crimes” the Court ruled on in April, that comparison is a stretch. Violating an honor code is undoubtedly a serious matter in an academic setting — but it is not a crime. It is comparable to other serious matters that are handled as civil offenses, such as defamation, employment discrimination, and civil fraud.

 

Using civil trials as a frame of reference is especially important because the Supreme Court ruling referred to here, Ramos v. Louisiana, pertains only to state criminal trials. Many states — including New York, Texas, and California — do not require unanimous verdicts in civil trials. And courts-martial, another apt analogue for VMI’s honor court, require only a two-thirds vote, even in criminal cases.

 

The analysis in this Post story is also noteworthy because of how its attitude toward due process in an honor court hearing compares with what the paper’s editors have suggested about due process in more serious campus proceedings.

 

In 2011, the Obama administration instructed universities to apply an evidentiary standard to sexual assault cases known as preponderance of evidence, according to which the jury need only believe there is a greater than 50 percent chance the accused is guilty of the alleged violation.

 

This standard of proof is the necessary threshold in civil cases; in criminal sexual-assault trials, however, prosecutors must clear the higher bar of beyond a reasonable doubt. Last year, Secretary of Education Betsy DeVos issued a new regulation that allows schools to apply a civil case standard of proof known as clear and convincing evidence, which falls between the preponderance-of-evidence and beyond-a-reasonable-doubt standards.

 

You might think, given the critique of VMI’s honor court proceedings, that the Post’s editorial team would welcome a higher burden of proof in Title IX cases. After all, according to a database maintained by KC Johnson, a professor at Brooklyn College and coauthor of The Campus Rape Frenzy: The Attack on Due Process at America’s Universities, students accused of sexual misconduct have filed more than 550 lawsuits against universities in state and federal court since 2011.

 

Not so. This is what the Post said about DeVos’s changes earlier this year: “Some changes — such as allowing schools to apply a higher evidentiary standard for sexual abuse cases than is used for disciplinary proceedings — seem ill-advised.”

 

Simply put, while the Post’s VMI story suggests that criminal standards should apply to honor court hearings about cheating on an exam, the editorial board would prefer that only the lowest evidentiary standards apply to charges of sexual assault.

 

That’s not the only high standard that the paper’s editors did not want President Trump’s Department of Education to implement. When DeVos first proposed the regulation, the paper called “a proposal that would guarantee a person accused of sexual misconduct the right to cross-examine the accuser” the “most troubling” of the suggested reforms. It was part of the final rule nonetheless.

 

There’s one more layer of irony to the story. The Post uses the recent Supreme Court decision to suggest that VMI’s policy was racist, as “non-unanimous jury verdicts were rooted in Jim Crow.” Yet journalists and law professors have argued that Title IX campus sexual-misconduct investigations are biased against black male students. Perhaps for that reason, if not for consistency’s sake, the Post could see the value of DeVos’s more rigorous standards of evidence.

 

It is reasonable to want students accused of violating an honor code to receive a fair hearing that follows high standards of due process. But why would we expect that if we’re not providing it to students facing much more serious charges? The new administration should consider that question before it reverts to Obama-era guidance.