Due process has been a bedrock of justice in democracies since the Magna Carta was signed in 1354, saying, “No man … shall be put out of his lands … nor put to death without … due process of law.”
In contemporary America, many believe due process is threatened by ideas like this:
“Not only do women like Dr. Ford who bravely come forward need to be heard, but they need to be believed. … And I just want to say to the men of this country, just shut up and step up,” said Sen. Mazie Hirono, a Hawaii Democrat.
Nowhere is Hirono’s philosophy as entrenched as on college campuses.
In 2011, the Obama administration lowered the standard for the finding of guilt in alleged campus sexual assault from “clear and convincing evidence” to “a preponderance of evidence,” meaning more than 50%.
The change resulted in a tsunami of campus tribunals where students — mostly young men — were found guilty of sexual misconduct, assault, or rape, without the right to cross-examine their accusers, without due process.
K.C. Johnson of the Brooklyn College of Law said, “The process is designed with the presumption that the accuser must be telling the truth. And that testing that presumption is somehow another sexual assault on the accuser. And this is entirely anathema to two basic principles of due process really both in the criminal justice system and within higher education as a whole.”
In the aftermath of the Obama Title 9 change, hundreds of convicted students sued their colleges in real courts of law.
Johnson has written that out of 340 lawsuits filed in federal court against universities, “Colleges have been on the losing end of more than 90 federal decisions, with more than 70 additional lawsuits settled by the school prior to any decision.”
In May of 2020, Education Secretary Betsy Devos amended the Obama era Title 9 guidance, saying, “The notion that a school must diminish due process rights to better serve the victim, only creates more victims. Under the new interim guidance released Friday, schools can now use either the preponderance standard or the clear and convincing standard.”
That change did not last long. Yesterday, President Biden signed two executive orders that require a review of Trump era revisions to Title 9 policies.
Jennifer Klein, executive director of Biden’s Gender Policy Council, said, “The second order the President signed this morning focuses on policies, advances policies, designed to guarantee an education free from sexual violence.”
Pressed on what that really means, Klein stopped short of a promise of due process, saying, “What is clear is that the policy of this administration is that every individual, every student is entitled to a free and fair education, free of sexual violence and that people — all involved — have access to a fair process.”
Complicit in the denial of due process in campus tribunals, is the media, which has sullied itself with gullible and sometimes flat out wrong coverage of high profile cases of alleged sexual violence — from the New York Times error-filled coverage of Duke University lacrosse team rape hoax, to Rolling Stone’s coverage of an imaginary rape at University of Virginia. A gullibility that appears to fit an ideological agenda.
