At the beginning of 2016, commentators, including myself, began to seriously question GOP presidential candidate Marco Rubio's commitment to due process rights for college students accused of wrongdoing — specifically of sexual assault. Rubio finally addressed those concerns in a news release on his campaign website.
The questions technically began on Dec. 30, 2015, when K.C. Johnson and Stuart Taylor (co-authors of a book about the Duke Lacrosse rape hoax) called Rubio and several other senators out for their support of a dangerous campus sexual assault bill. The bill would codify into law all of the guilty-until-proven-innocent tactics of the Education Department, while providing no substantive due process rights for accused students to defend themselves.
Activists will point out that the bill does include some due process rights — for example, it would require schools to inform students of the accusation against them. It's kind of amazing that colleges even need to be told to do this, but that tells you everything you need to know about the current campus climate when it comes to due process and accusations. I also don't think this is sufficient protection when everything else in the bill works against accused students.
Next came a column from George Will and a column from myself about Rubio's support for the Campus Accountability and Safety Act. Will's column posted in the evening of Jan. 13, and mine posted in the early morning of Jan. 14. Earlier in the day on the 13th, I had reached out to Rubio's communications people for a comment on due process rights.
All of this appears to have helped encourage Team Rubio to release a memo on tackling campus sexual assault, titled "How Marco Would Combat Sexual Assault and Protect Due Process Rights on Campus."
First, Rubio touted the Campus Accountability and Safety Act, the dangerous campus sexual assault bill I mentioned earlier. I don't buy Team Rubio's argument that the bill works to protect the rights of accused students. As I've written previously, the bill mentions due process rights but doesn't define what schools must provide, allowing schools to make their own determinations. This is what they are currently doing, and it is a disaster leading to lawsuits from wrongly accused students.
The bill also provides support services to accusers, but not to accused students, and requires the sexual assault "training" that investigators and administrators go through to be victim-centered. In other words, just believe the accuser. All of these things work against accused students and create an unfair process.
But Team Rubio does give some cause to remain optimistic. The news release mentions "the Left's overheated rhetoric and misleading statistics."
Team Rubio also says the Florida senator has "fought successfully to exclude the key items on the Left's wish list," such as affirmative consent and the "preponderance of evidence standard."
These are good things to exclude. Whether Rubio was really as instrumental in keeping them out of the bill as his people claim is up for debate.
At the bottom of the release, though, Rubio's team really does address false accusations.
"Sexual assault can destroy lives, but so can false allegations of sexual assault. One need only review recent news reports to know that false allegations do, in fact, happen," the release said. "Certainly, we should make additional efforts to protect due process on campus. Most importantly, as president, Marco would swiftly move to stop the Department of Education's Office of Civil Rights' assault against due process rights."
This is positive, but only words — and not even words directly from the candidate.
I'm going to need a lot more from Rubio before I accept that he truly cares about due process rights for accused students, because supporting CASA is not a good start. Where is legislation that addresses due process rights? Would a president Rubio sign CASA into law without a companion bill addressing these rights?
I wrote in my column last week that CASA won't be just a first step, but the only step, as politicians pat themselves on the back and say they did something. The bill will cause more problems than it purports to solve, and the new problems won't be dealt with.
I want to see Rubio's plan to stop OCR's overreach. Until then, I'm still skeptical.
Ashe Schow is a commentary writer for the Washington Examiner.