The Tipping Point for Due Process?

This week has featured a potential tipping point in the debate about due process and campus sexual assault.

The first event came in publication of an extraordinary column by Ezra Klein, defending California’s “affirmative consent” law. In one respect, it wasn’t surprising to see Klein defend the proposal; too many liberal commentators (not to mention, of course, the entire Democratic contingent in the California legislature, plus Governor Jerry Brown) have backed the law. But Klein’s argument was astonishing—he conceded that the law was flawed, even badly flawed, but celebrated the flaws as a virtue. The law will mean that “too much counts as sexual assault” and that innocent students will be branded rapists (though such cases, Klein suggests in a fact-free claim, “very, very rarely” occur). But Klein considered it “necessary” to get more students deemed guilty of rape in “morally ambiguous” situations to convince men in college (but, it seems, not anywhere else) that “they better Be Pretty Damn Sure.”

Klein’s column has triggered a torrent of criticism. The highest-profile came from New York’s Jon Chait, who expressed amazement that Klein was “arguing for false convictions as a conscious strategy in order to strike fear into the innocent,” a “conception of justice totally removed from the liberal tradition.” Amidst an off-base and politically correct interpretation of the lacrosse case, Freddie Deboer challenged Klein from the left, contending that the poor and minorities would be the most victimized by California’s law. James Taranto eviscerated Klein’s argument in the Wall Street Journal. FIRE’s Will Creeley tweeted that he was “completely shocked” by Klein’s column, which borrowed from the “same morally bankrupt justification trotted out for inhuman abuses of power for decades, [the] worst impulses of humanity.”

By committing a Kinsley gaffe—admitting the politically indefensible rationale for a policy—Klein’s column unintentionally served the cause of due process.

But California’s law is only a small part of the war on campus due process. A much more important document, touching on the central issue, appeared Wednesday morning. A letter published in the Boston Globe and co-signed by 28 current and emeritus members of the Harvard Law School faculty asserted that Harvard’s new sexual assault policies “lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation.” The list of signatories included such high-profile names as Alan Dershowitz, Charles Ogletree, and Nancy Gertner; and in general was hardly a group that leaned to the right.

The specifics of the law professors’ criticism? An absence of meaningful discovery; a structure that makes the Title IX office investigator, judge, jury, prosecutor, and appeals court; a failure to provide “adequate representation for the accused,” especially poorer students; an overly broad definition of sexual harassment; and vague and seemingly arbitrary rules regarding sex while intoxicated.

The most interesting aspect of the law professors’ letter came in its demand that the school stand up to the federal government. The professors lamented that, in violation of principles of academic freedom, “Harvard apparently decided simply to defer to the demands of certain federal administrative officials, rather than exercise independent judgment about the kind of sexual harassment policy that would be consistent with law and with the needs of our students and the larger university community.” Signatories urged the university to withdraw the policy and start anew, while beginning “the challenging project of carefully thinking through what substantive and procedural rules would best balance the complex issues involved in addressing sexual conduct and misconduct in our community.”

And if the OCR followed through on its (empty) threat to withhold federal funds? “Harvard University is positioned as well as any academic institution in the country to stand up for principle in the face of funding threats.”

A Harvard University spokesperson essentially dismissed the criticism in a statement given to the Crimson. (It’s unlikely this blasé response will suffice; even the anti-due process New York Times ran a story on the law professors’ letter, deigning to mention for the first time the due process lawsuits as well.) Will Harvard’s donors and prominent alumni be satisfied with a policy many of its law faculty have warned “departs dramatically” from basic legal principles, “jettisoning balance and fairness in the rush to appease certain federal administrative officials”? Or will one university finally stand up for due process?