Should the U.S. Department of Education cut off public funding for colleges and universities that decline to restrict the free speech rights of certain classes of students? Such a policy would be tossed out by federal courts as patently unconstitutional. And although students may lack an absolute constitutional right to promote certain messages on private colleges' property, it is constitutionally insidious to empower federal bureaucrats to bludgeon campus administrators until they restrict particular students' freedom of speech.
The Obama administration has not imposed such a policy regarding First Amendment free-speech rights, but it is doing almost exactly the same thing to 14th Amendment due process and equal protection of the law guarantees with new rules on how colleges must treat accusations of campus sex crimes. Obviously, rape and sexual assault are serious crimes regardless where they occur. It would be inappropriate for academic institutions to treat such accusations with anything less than the utmost gravity.
|Obama's Education Department is effectively encouraging kangaroo proceedings with only one possible outcome.|
But it is also unacceptable to deprive accused students of due process, or to dictate evidentiary standards under which the innocent stand little chance of acquittal. By requiring only a “preponderance of the evidence” to establish guilt, Obama's Education Department is effectively encouraging kangaroo proceedings with only one possible outcome.
Under the Education Department’s rules, college administrators are being pressured to pursue cases with little evidence of guilt other than an accusation. To make matters worse, the threat of a potential federal investigation of the school increases the pressure for guilty verdicts, unless defendants can marshall overwhelming exculpatory evidence.
In other words, in practice, this amounts to a federally required presumption of guilt in college disciplinary proceedings. To be sure, college campuses are not courts, and the Bill of Rights may not strictly apply to their disciplinary procedures, but the government is still requiring academic officials to do something it cannot do to defendants tried before federal judges.
Earlier this week, the Washington Examiner's Ashe Schow highlighted the case of Kevin Parisi, a Drew University student whose life was shattered by a false accusation of campus rape. Parisi was kicked off campus while the matter was investigated. The stress worsened his already shaky health and caused his academic performance to suffer. He was eventually placed on academic probation.
Even so, he was lucky — he was completely exonerated. His accuser had spoken to a friend about their consensual encounter and then (according to Parisi's subsequent lawsuit against Drew University) encouraged the friend to lie out of fear for what her boyfriend would say. Had Parisi's accuser been more discreet about their consensual encounter, he might have been forever unjustly marked as a campus rapist and sex offender.
Parisi’s case is a cautionary tale that encourages college students to avoid promiscuity, especially with strangers or casual acquaintances. But the presumption of innocence for those accused of crimes is a deeply rooted principle of American constitutional and criminal law. If federal bureaucrats dilute this principle on campus, who or what will prevent its inevitable defenestration off campus?