A Depressing Year for Campus Due Process

This article is second in a series on “the year that was” in higher education.

The 2013-4 academic year featured a steady assault on campus due process, resulting from a loose alliance between the Obama administration (especially its Office for Civil Rights) and self-appointed “activists,” their faculty supporters, and a handful of higher-ed journalists. The year concluded with some pushback from an unexpected source—the federal courts—likely previewing major controversy between the academy and civil society for coming years.

A More Aggressive Federal Policy

The year opened with debate over whether the OCR’s settlement with the University of Montana constituted a “blueprint” that all other schools would be expected to follow. Under strong editorial and political pressure, OCR backtracked, suggesting that the agency’s use of the word “blueprint” didn’t necessarily mean that OCR wanted other colleges to follow the Montana policy.

In the event, any doubt about OCR’s intentions vanished after an October settlement between OCR and SUNY. In addition to the normal OCR terms (telling a school to brand students rapists on a preponderance-of-evidence threshold, allowing accusers to appeal not-guilty findings), the SUNY settlement included two elements that were highly unfriendly to due process.

First, the agreement clarified that in the rare instances when accusers simultaneously report allegations both to police and to their college, college officials cannot defer to the results of the police inquiry, and instead must conduct their own investigation. The SUNY provision all but guarantees that in the future, we’ll see more examples like that of Caleb Warner, the North Dakota student deemed a rapist by his own school even as local police charged his accuser with filing a false police report. The OCR document didn’t explain why colleges should not accept the result of a police inquiry that concludes a student accuser wasn’t telling the truth.

Related: The White House Joins the War on Men

Second, the SUNY agreement openly embraced the need for double jeopardy at four SUNY schools in cases during the 2011-2 and 2012-3 academic years in which the university’s own procedures (tilted heavily in favor of the accuser) nonetheless found that the accused student hadn’t committed any crime. As with the ruling on the unacceptability of police inquiries, OCR didn’t explain why it ordered schools to effectively re-adjudicate cases with whose outcomes the OCR disagreed.

A Dubious Task Force

The Vice President’s Task Force probably has received the most attention for its dubious claim that one-in-five women will be raped at college. It’s hard to fathom that even the White House itself believes the statistic, given that the Task Force simultaneously has portrayed a violent crime wave of unprecedented proportions sweeping the nation’s campuses while offering recommendations that include no increased law enforcement role on campus.

That said, the key elements of the joint Task Force/OCR document revolved around recommendations to weaken due process protections for accused students. The report repeatedly used the word “survivor” or “victim” to describe sexual assault accusers—without explaining why or how an accuser who makes a false claim could be deemed a “survivor.” (This type of word choice, of course, is what happens from a process that presumes claims of sexual assault are true.) The task force discouraged schools from allowing students to serve on disciplinary panels—meaning that accused students’ fates can be determined by administrators subject to institutional pressure to heighten guilty findings. Indeed, the administration report encourages schools to get rid of disciplinary panels altogether, and instead allow schools to determine a student’s guilt based solely on the recommendations of an independent investigator—hired by figures such as Dartmouth’s Amanda Childress or other guilt-presuming Title IX coordinators.

Campuses Are More Unfriendly to Due Process

As the administration pushed colleges to weaken due process protection for the accused, self-styled “activists” did the same at the grassroots level. The efforts began, at all places, at Yale, the institution that if anything previewed the war on due process with its treatment of former quarterback Patrick Witt. As has been its practice for the past several years, last August Yale released a report summarizing its campus sexual assault proceedings over the previous six months. The report attracted the activists’ outrage not for Yale’s almost comical indifference to due process, but because the university revealed it hadn’t expelled students it deemed guilty of “nonconsensual” sex. Yale hadn’t done so because the university had so broadened the definition of sexual assault that it included such provisions as “economic” violence among roommates.

The attacks on Yale nonetheless exposed a significant issue: in the past few years, while campuses changed rules to make it far more likely that accused students would be branded rapists, they had retained one element of fairness, what attorney and FIRE co-founder Harvey Silverglate has termed the “penalty for the innocent.” That is: the punishment fit the actual “crime” committed by the student, not the offense (sexual assault) the university had claimed the student committed.

But in the current environment, this tension has proved untenable. Those outside campus (understandably) have no sense that the campus definition of sexual assault in many cases bears little resemblance of the real-world definition of the crime, and therefore (understandably) have been outraged by claims that universities have been “soft” on rapists. Duke, the bastion of hostility to due process, led the way, deeming expulsion the presumed penalty for students found guilty of sexual assault. (For good measure, Duke didn’t include the change in its written policies.) Dartmouth has recently followed suit. A student at Brown was basically driven out of school after he attempted to return from a suspension. It seems all but certain that within the next few years, most major colleges will have the mandatory-expulsion policy.

Beyond the move for increased punishment, the academic year featured activists at schools with some of the most anti-due process sexual assault policies (Occidental, Swarthmore, UNC) filing Title IX complaints on grounds that these policies unlawfully tilt against accusers. (Swarthmore’s policy prohibits accused students from even talking about their case with attorneys; Occidental’s allows a conviction even if the accuser said “yes.”) Dozens of schools are now being subjected to similar investigations by the OCR.

The Media is Credulous

Governmental overreach (OCR is effectively rewriting Title IX) coupled with an assault on civil liberties normally would generate probing oversight from the media. In this instance, however, the reverse has occurred: several journalists (Katie Baker of BuzzFeed, Richard Pérez-Peña of the New York Times, Tyler Kingkade of Huffington Post, Allie Grasgreen of Inside Higher Ed) have served as de facto propagandists for the anti-due process movement.

Related: The Times’s Shoddy Reporting on Campus Rape

To the best of my knowledge, as this quartet has published dozens of articles on campus sexual assault issues over the past year, none has actually described the specific policies of the college about which activists were complaining. Providing such context, of course, would have undermined the activists’ message.

Judicial Backlash

With the administration determined to weaken due process, a campus environment almost uniquely ill-suited for ensuring due process for accused students, and much of the media willing to contribute to a witch-hunt atmosphere, the courts provide almost the only potential buffer to ensure fair procedures. A tension exists, however: courts traditionally have proven reluctant to second-guess college disciplinary decisions, not unreasonably concluding that academics, and not judges, are best-suited to determine when students commit campus offenses.

But no justification exists for such deference when colleges are evaluating a serious crime. And the year featured a virtually unprecedented backlash, with more than a dozen pending lawsuits from coast to coast. One of these—filed by Dez Wells against Xavier—resulted in Xavier quickly settling, after the university lost a procedural fight before a federal judge. Another federal judge green-lighted a lawsuit against St. Joe’s. Recent suits against Columbia, Drew, and Occidental all raise troubling questions about the universities’ conduct. And perhaps the most interesting of these suits, filed against Vassar, in a case that almost perfectly illustrates (minimal due process, questionable conduct by the administration, inconsistent application of the school’s alcohol policy) the due process problems caused by colleges attempting to adjudicate serious crimes.

What will next year bring? Absent more robust congressional oversight, the administration likely will escalate its efforts to weaken due process protections for accused students. There’s also no reason to anticipate a change in behavior from either the higher-ed media or campus “activists.” With more questionable convictions all but certain to occur, the open question remains whether the courts will intervene to ensure that all students on today’s campuses receive a fair process.