By David
Harsanyi
Tuesday, March
09, 2021
It’s always worth reminding people
that if President Joe Biden were compelled to live by the standards he intends
to institute for college students accused of sexual misconduct, he would be
presumed guilty of rape, denied any legitimate opportunity to refute Tara
Reade’s charges, and tossed from office in disgrace.
The New York Times reports today that Biden’s Kafkaesque “White House Gender Policy Council”
is “beginning his promised effort to dismantle Trump-era rules on sexual
misconduct that afforded greater protections to students accused of assault.” The
subhead informs us that, “The Biden administration will examine regulations by
Betsy DeVos that gave the force of law to rules that granted more due-process
rights to students accused of sexual assault.”
The most disingenuous word here — though
the piece is brimming with them — is “more.” History did not begin in 2015, and
former education secretary Betsy DeVos did not invent more due-process
rights in Title IX; she simply reinstated time-honored fundamental due-process
rights that have guided justice systems in the liberal world for hundreds of
years. The Constitution says — twice — that no citizen shall
be arbitrarily “deprived of life, liberty or property without due process of
law.” No means no.
It was only in 2011 that the Obama
administration instituted fewer due-process rights through the
force of law, denying the accused the ability to question accusers, the right
to review the allegations and evidence presented by their accuser, the right to
present exculpatory evidence, and the right to call witnesses. Basically, the
right to mount a defense.
It was the Obama administration that asked
schools to institute a system that empowered a single investigator, often
without any training and susceptible to the vagaries of societal and political
pressures, to pass unilateral judgement on these cases. Also, under the Obama
administration rules, colleges were allowed to adjudicate sexual abuse and
assault cases using “preponderance of evidence” rather than a more stringent
“clear and convincing evidence” standard.
Now, Jennifer Klein, the “Gender Policy
Council” co-chair and chief of staff to First Lady Jill Biden, says “everybody
involved” in a sexual complaint, “accused and accuser,” should be entitled to
due process.
Okay. Has anyone ever argued that the
accuser’s right to come forward should be diminished, or that the accused
should be afforded fewer protections than any other American who says they are
the victim of a crime? We should never diminish the pain and anguish those who
come forward with these charges go through. But the presumption of innocence is
a legal term based on a values system. And if the federal government is going
to dictate how colleges deal with sexual-assault accusations, it has a
responsibility to uphold the norms of the Constitution.
The good news is that between 2011 and
2021, there has been a string of court cases repudiating Biden’s position.
Hundreds of lawsuits were filed since 2011. A 2015 study by United Educators found that a quarter of the Title IX statute
had been challenged by students who either filed lawsuits in the federal courts
or lodged complaints through the Department of Education’s Office for Civil
Rights. Dozens of schools, including Northwestern University, Dartmouth
College, and Yale settled cases, while schools such as USC, Pennsylvania State
University, Ohio University, Hofstra, Boston College, and Claremont McKenna all
lost decisions.
Schools complained about the costs of
implementing due process, yet the average cost of
settling these claims was
around $350,000, with some going as high as $1 million.
This, not incidentally, also means that
some people who are guilty of sexual assault will claim to be victims of flawed
hearings or unfair sanctions simply because they can circumvent the norms of
justice. Proper due process protects both the accuser and the accused. At the
very least, the state should ensure that students are afforded the same
impartiality, norms, and protections that every one of us expects in the real
world. Either we believe principles are the best means of fairness, or not. Biden, it
seems, only believes in them for himself.
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