[KC Johnson and Stuart Taylor] Fairness and campus tribunals

We express our thanks, again, to Eugene for his invitation to blog, and to readers and commenters for reading our posts.

As our book shows, the procedures that most colleges and universities use in sexual assault cases are so structurally unfair to accused students — with some exceptions at big-money sports programs and religious schools — as to call into question the schools’ commitment to pursuing the truth. What can be done about this?

Two points to start. First, there needs to be an acknowledgment that a problem exists. If our book serves no other purpose, it documents dozens of cases — most of which have received little or no attention in the media or higher-ed circles — in which colleges have used unfair procedures to wrongly punish accused students. We have no reason to believe that the cases we’ve uncovered are isolated occurrences. Even Brett Sokolow, one of the stoutest defenders of the new campus regime (from which he has profited richly), has conceded that “almost all” of the due-process lawsuits must have been “filed by 1 percenters” — meaning students from wealthy families. Most wrongly accused students whose parents’ earnings fall into the bottom 99 percent are out of luck.

Second, given the record of the past six years, it seems unlikely that college and university administrators will act to prevent grave injustices unless forced to do so. This past week, for example, two journalists who have done excellent work on this topic, Reason’s Robby Soave and Watchdog’s Ashe Schow, highlighted a recent trend in which defenders of the campus status quo have cited the shortcomings of typical college investigations as justification for degrading the already minimal protections for the many innocent accused students.

Schow, who reported on a conference of higher-ed administrators, paraphrased one official as noting that “the lower standard [of proof] was easier for administrators because they don’t have the expertise of law enforcement.” Soave noted [adding bold for emphasis] how a consultant on higher education compliance issues, Andrew Morse, remarked, “The lower threshold as articulated in guidance in 2011 by the Office for Civil Rights provides the foundation for a likely outcome of responsibility that will protect survivors of sexual violence while still not prohibiting the individual found responsible [from] seeking educational opportunities later.” As Soave noted, it seemed like for Morse, “It’s not about finding the truth, or administering justice. The purpose of the guidance is to make it more likely that accused students are found responsible, whether or not they have done anything wrong.”

These sentiments resembled that offered in a January “Room for Debate” piece in the New York Times. Professor Nancy Chi Cantalupo, defending the Obama administration’s policy, asserted that higher standards of proof “require evidence of a quantity and type that is virtually impossible for schools to access, as they lack court powers such as the subpoena which would compel the production of evidence.” But while arguing that campus systems are not competent enough at finding the truth to do justice to accusers unless the burden of proving guilt is minimal, Cantalupo implied that doing justice to students who are wrongly accused is of no great concern.

Since universities aren’t going to act on their own to do justice, the initiative must come from elsewhere.

The Trump administration could make a first, positive step toward campus fairness by withdrawing the Obama Education Department’s 2011 “Dear Colleague” letter and the subsequent 2014 OCR guidance. Since the Obama administration chose to bypass the notice-and-comment rulemaking requirement in issuing its reinterpretation of Title IX, that reinterpretation could be junked just as easily. Universities would, to be sure, remain under heavy pressure from campus activists and Title IX administrators to retain unfair procedures. But at least they could no longer claim that they were merely complying with federal commands. And the new OCR head, whose identity is not yet known, should be committed to interpreting Title IX fairly, rather than following the Obama appointees’ path.

The courts, meanwhile, should give no deference to the decisions of academics — or bureaucrats hired by academics — about whether a student committed a felony offense.  The July 2016 Second Circuit decision we discussed Wednesday, which preliminarily upheld an accused male student’s Title IX claim that Columbia discriminated against him