Reinventing law is all the rage, with those who see money to be made promoting the idea that roadblocks like the Unauthorized Practice of Law are sapping their potential profits. They hate that.
But there is a far more nefarious effort to reinvent law happening on college campuses, as reflected in the handling of campus sexual assault and rape, where the reinvention doesn’t pertain to shiny devices (well, not directly anyway), but to the fundamentals of due process, the rules that have been developed over the millennia to provide fundamental fairness to those accused of committing an offense.
The failings of campus adjudication has been a subject of many posts here, but the upshot of these adjudications is that colleges and universities, at the direction of the Department of Education upon pain of financial ruin, have essentially wiped the slate of due process clean, and decided to reinvent their procedures as if this was a fresh debate with neither history nor understanding of what processes are needed to assure fundamental fairness.
The recalibration of due process has not gone well, with the arguments confused and irrational. Arguments such as why the accuser is just as entitled to due process as the accused are proffered, though the simple answer is that due process is only for the accused because they are the person in jeopardy.
There are arguments for why the accuser shouldn’t be re-traumatized by such things as examination, scrutiny of their allegations, cross-examination, exposure of their accusations and their own contributory conduct. These are all obvious pieces of due process in court, but not on campus.
Notably, campus adjudications are not courts, but administrative proceedings. They are not subject to the rules that would apply in a courtroom, as they are putatively informal and do not impose what the law defines as criminal punishment. But as the consequences, such as college expulsion, become increasingly severe, and may well serve to permanently impact a young man’s future by being public branded a rapist, not to mention result in a forfeiture of enormous sums of money paid in prior tuition, the only distinction remaining is a prison cell.
Per FIRE, two new bills have been introduced in Congress to undo the Department of Education’s coercion of colleges and universities to assume its political stance toward sexual assault and rape on campus.
Last week, Congress introduced the the Safe Campus Act (H.R. 3403), a bill that would address campus sexual assault, while providing accused students meaningful due process protections. In another welcome development, a second bill, the Fair Campus Act (H.R. 3408), sponsored by Representatives Pete Sessions and Susan Brooks, was also introduced last week.
The Fair Campus Act differs from the Safe Campus Act in only one way. Under the Safe Campus Act, campuses are precluded from conducting disciplinary hearings regarding allegations of sexual assault unless the complainants report the allegation to law enforcement first. The Fair Campus Act does not include that provision.
The idea behind these proposals is to somehow rein in the reinvention of due process in campus adjudications. And to some extent, they do.
Both bills would provide accusing and accused students with the right to hire lawyers to actively represent them in the campus hearings and the right to examine witnesses, and both bills would require institutions to make inculpatory and exculpatory evidence available to all parties. The bills would also reduce conflicts of interest by prohibiting individuals from playing multiple roles in the investigatory and adjudicatory process—preventing, for example, an investigator from serving as an adjudicator.
And then again, in some they seek to improve upon the current state of affairs, but fall short of any real improvement:
In addition to these important provisions, each of the bills would repeal the Department of Education’s Office for Civil Rights’ (OCR) misguided and unlawfully imposed preponderance of the evidence mandate, returning the decision as to which standard of proof to use in these cases to individual states, campus systems, or individual campuses.
Leaving schools to their own devices may well result in some requiring a higher standard of proof than mere preponderance, but it wouldn’t require them to do so. Is it any more appropriate to use preponderance rather than, say, clear and convincing when it’s chosen rather than rammed down their throats by DoE Office of Civil Rights? The net result seems to be no different.
But there remains a gaping hole, no matter what tweaks are applied to the rules in a college setting. The decision makers aren’t judges, or lawyers, or frankly anyone with the slightest clue as to what the underlying concepts of due process mean. In one instance, an accused was given a philosophy grad student as advisor in dealing with a rape accusation. While absurd, consider whether it would be any less absurd to have a philosophy prof, or worse, as adjudicator.
Due process provides the tools necessary to provide reasonably fair and reliable outcomes, and as these proposed laws provide tools that are currently refused in campus adjudications, they are valuable starts. But like all tools, they’re only as good as the mechanics who use them.
Once they’re made available to the accused, the next step would require adjudicators who are both capable and inclined to respect due process, to understand the meaning of fundamental fairness rather than a flagrantly prejudiced grasp of their role and abuse of their adjudicatory position to further an agenda determined to side with the accuser without regard to reason.
So these laws offer a necessary change to the process that can have terrible consequences for males on campus, at least as far as they go given what we know to be required to provide truly meaningful due process from criminal adjudication. But it won’t cure the problem. A real solution would require that conduct that is tantamount to a crime, and which gives rise to punishment that is criminal in every respect except name, should be addressed in a forum prepared and competent to handle it. That would be court, not campus.