The Council of the Princeton University Community voted on Monday to gut due process for students accused of sexual misconduct. The week before last it was the turn of the faculty to genuflect as the hearse bearing the remains of due process rolled past. This unsavory episode highlights two parlous issues. First, there is the problem of sexual misconduct on campus, which was always at unacceptable levels and appears to be getting worse. Second, there is the dangerous license federal agencies have to rewrite law.
Albert Einstein defined insanity as repeatedly doing the same thing while expecting different results. Attributing changing results to an unchanging policy seems likewise off kilter. Yet until two or three years ago the protocol for adjudicating cases of alleged sexual misconduct by students at Princeton had remained unchanged for decades, not exactly a strong basis on which to conclude that due process for the accused provoked an increase in sexual assaults over those same decades.
There is no paucity of options for improving the campus environment. Alcohol often figures prominently in cases of sexual misconduct; inebriated men and women are more vulnerable to being sexually assaulted, and sexual predators are more reckless when under the influence of alcohol. This in no way lessens the liability of the perpetrator, any more than would the absence of street lights or a the lack of a nearby police officer, but as with improved lighting and increased patrolling of high risk locations, a sterner approach to alcohol consumption would likely produce appreciable reductions in sexual misconduct. Other areas for possible improvement exist: in many places campus culture takes a flippant attitude toward sexual intimacy, creating ideal camouflage for sexual predators. Without violating anyone’s freedoms universities could create a more respectful atmosphere for the young adults who come to their campuses to study. Alas, the Office of Civil Rights at the Department of Education (OCR) has instead prioritized the elimination of due process. This will do nothing to alleviate the problem of sexual misconduct, while at the same time it will trammel the lives of students who will now confront a Kafkaesque disciplinary process whose tentacles will ensnare more than a few perfectly innocent men and women.
What of the process by which the new restrictions on freedom just approved by the Princeton faculty have come forward? The new policies are the craven but predictable response of university administrators to pressure from the OCR to curtail due process. Moreover, this neo-Orwellian approach to discipline is by no means confined to the environs of Old Nassau. OCR is actively pressuring dozens of universities to eviscerate due process on their campuses, and they have met with little more resistance than they did at Princeton, where but a handful of the faculty demurred.
Why is this happening? Revisiting Title IX of the civil rights act of 1964 (Title IX) and the Violence against Women Act (VAWA), the OCR has announced their new interpretation of these laws as (i) requiring university disciplinary procedures to extinguish any presumption of innocence in cases of alleged sexual misconduct, and (ii) allowing double jeopardy in cases of acquittal. The OCR has also let it be known that it dislikes the presence of trained students in the process for adjudicating cases of alleged misconduct, while it would like universities to include lawyers in the process, but only as advisers and not as advocates, and it is quiet on the subject of what to do about students who cannot afford legal counsel. This highhanded approach to regulation is hardly unique to OCR. Regulatory agencies routinely exercise, and occasionally abuse, considerable discretion in writing regulations to implement legislation, in some cases drawing on statutes passed decades ago. Moreover, they enjoy substantial deference from the courts in their interpretation of the law.
In this particular case universities have little room to maneuver in the face of the noxious replacement of due process with double jeopardy. OCR has been brutally clear about where it stands, and it can expect a judicial stamp of approval. A recent Wall Street Journal article on this subject suggests that Princeton forgo some government funding and draw down its endowment instead. Matters are not quite so simple—though the willingness of the Wall Street Journal to spend someone else’s endowment is appreciated.
Consider a potential lawsuit by a student who claims the university was partly to blame for her having been the victim of sexual misconduct. If the plaintiff’s attorney points out that the university had been warned by OCR that its sexual misconduct policy was inadequate, the university would find itself at a precarious disadvantage. No endowment could withstand many such lawsuits. Nor can universities get out of the adjudication business. No organization, let alone a residential university, can ignore an accusation of sexual misconduct made against one of its members while the judicial process slowly grinds to a resolution. Any organization, a club, a government agency, or a business, even an illustrious newspaper, that finds one of its members is accused of sexual misconduct will make a determination of the credibility of the allegations and then decide whether removing the accused individual is in order. For years, and in contrast with most organizations that leave the decision about how credible the allegation is to the whim of an administrator, many universities chose to use due process in their decision making, something OCR now insists they stop doing. Where universities can push back against OCR is on the fringes of the process, such as the expressed desire by OCR to remove trained students from the process.
While universities have limited options, and as revealed by their recent behavior, an even more limited will to exercise them, we still live in a representative democracy. Either chamber of Congress can hold investigative hearings, and both hold budgetary purse strings. As for OCR, it is part of the executive branch, and under the control of President Obama—he clearly approves of its recent actions. Yet when last I checked, both political parties purported to be tireless defenders of due process, and each enjoys a majority in one chamber of Congress. Moreover, Congressional elections approach—in a mere four and a half weeks all of the House and a third of the Senate will face the voters. This year, get the candidates on record, and then vote as if it mattered. It does.
John Londregan is a professor of politics and international affairs at Princeton.
