The Foundation for Individual Rights in Education has been battling unfair campus sexual assault policies for years. Now, civil liberties attorney and Senior Vice President of FIRE Robert Shibley has written an article in the Washington Post about the unfair processes.
Activists and supporters of the new Title IX regime claim that using a lower standard of proof — the preponderance of evidence — is what is used in civil court, and therefore acceptable in college tribunals. FIRE — and I — have pointed out before that civil court also comes with other due process protections that are absent from college tribunals. Those missing protections have become detrimental to accused students, as schools are under extreme pressure to find more students responsible for sexual assault or face an investigation by the federal government.
As Shibley noted, colleges get to decide who presides over adjudication, which can include administrators, random professors or students. Sometimes a single administrator will serve as investigator, judge and jury. Neither the accuser nor the accused has a right to an attorney in most states, and cross-examination is either non-existent or so watered down it’s meaningless.
Accused students aren’t guaranteed that all the evidence against them will be shared ahead of time. Exculpatory evidence is often ignored by adjudicators, while hearsay provided by the accuser is allowed. The parties aren’t under oath, there are no consequences for accusers who lie and there’s usually no record of the hearing.
“Only a madman — or someone utterly blinded by political ideology — would claim that such a system is ‘equitable,'” Shibley wrote. “Yet that is precisely the claim the Office for Civil Rights makes and that it unlawfully imposes on every college in the country.”
Beyond the article, Shibley has also written a short book, titled “Twisting Title IX,” that explains in great detail the problems with campus adjudications.
Ashe Schow is a commentary writer for the Washington Examiner.
