There was a question on my law school application, “how many hours a week do you plan to study?”  It was an idiotic question, so I responded with an appropriate answer: “How long must a man’s legs be?” They admitted me anyway.

Senior Southern District of Ohio Judge Sandra Beckwith was confronted with a similar question.  She answered.  Poorly. From K.C. Johnson at Academic Wonderland:

Among the dozens of due process cases filed since the Dear Colleague letter’s appearance, the most significant factor in the outcome is the randomness of judicial assignments…

Last month, Senior U.S. District Judge Sandra Beckwith, a George H.W. Bush appointee, joined this undistinguished list. She heard a lawsuit filed by two accused students at the University of Cincinnati. Even in the world of university sexual assault investigations, UC’s conduct was particularly bad.

How bad?  On top of a laundry list of failings, this bad:

Judge Beckwith interpreted the relevant precedent as not having “clearly established that [the accused students] were entitled to the presumption of innocence,” or that they “could not be assigned the burden of proof.”

Was Judge Beckwith unfamiliar with the concept of due process, the basic procedural protections that provide the opportunity for a fair disposition, if not a fair disposition itself? Nah, she knew.

In ostrich-like fashion, Beckwith concluded that “it is not reasonable to infer that UC has a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding.” 

How is this possible? How can a federal judge expressly acknowledge the deprivation of procedural and substantive fairness to students at University of Cincinnati, a publicly-funded school, and therefore subject to the full panoply of constitutional rights?

Beckwith also dismissed the accused students’ Title IX claim, with the usual reasoning that the UC system at most was biased against accused students, and even though (as she noted in another part of the opinion) accused students are almost always male, there’s no gender component here. She also could not “conceive of an argument” that UC’s (undisputed in the record) never having found a student not guilty under the current disciplinary system suggested constitutionally problematic conduct.

Judge Beckwith leaned heavily on a 2005 6^th Circuit case involving the University of Miami, which kicked out a medical school student—who was first charged for a felony drug offense and then pled guilty to a felony. The idea that public universities should be expected to give the same degree of due process to criminals as to students who were never charged with a criminal offense is bizarre.

The basis for this overt refusal to become embroiled in this fiasco stems from the historic reluctance of courts to oversee educational discipline. It’s the Chevron deference of education, that schools are on a legal island all their own, upon which no judge should set foot.

So what’s the big deal?  Reliance on historic precedent is grounded in the nature of historic college disciplinary issues, like plagiarism or cheating on a test.  These are matters that were specifically within the purview of colleges to ascertain and address. These were educational offenses, and so courts deferred to educational institutions to address them.

Rape? Sexual assault?  These were not historic offenses limited to education. These are not offenses with which colleges have specialized knowledge and the capacity to address.  These are crimes. These are offenses that colleges are wildly incompetent to handle.  Hell, courts are barely capable of dealing with these crimes.

It’s true that since issuance of the Dear Colleague letter, colleges and universities have frequently presumed guilt. But they generally go through the motions of providing fairness. So it’s jarring to see a federal judge suggest that students accused of sexual assault don’t have a right to be presumed innocent.

In most of the cases reviewing college disciplinary proceedings of rape and sexual assault, the focus is on whether the college pretended to give the accused sufficient procedural safeguards before convicting them.  For those unaware, due process has two components, procedural and substantive.  The process by which an accused is convicted must be fair, in that it offers an accused the opportunity to know what he’s charged with, to respond, to challenge the accusation.

The other prong of due process requires that it be fundamentally fair, as in after a putatively adequate procedure, the accused is actually given a fair determination. It’s akin to a perfect trial preceding a pre-determined outcome of guilt. No amount of procedural fairness matters if the outcome of guilt is already decided.

Except, in Judge Beckwith’s mind, when the accusation happens on a college campus, because education makes her head spin.  She defers.  She decided that a judge shouldn’t stick her nose into affairs of education, and so her efforts were directed solely to why education is different, why colleges are beyond the reach of the court, why colleges are special.

This has not been the case with other courts, other judges, who have understood that deference may be fine when it comes to a student being disciplined for plagiarism (although, even there, one would suspect a little fairness would be a nice thing for anyone accused of anything), but when a student will be tainted for the rest of his life with the commission of a crime, and no less outrageous a crime as rape, colleges have no special competence that demands a court keep out of its business.

Some judges are slaves to precedent.  Some judges grasp when precedent isn’t really precedent at all. That the accused students in this case drew a judge of the first order rather than the second should inform those who ask, “how is this possible?” how it is possible. This is why we have appellate courts.

So what is the answer to the collateral question raised by my cryptic response on the law school application, “how much due process do students accused of rape need?”  Enough to assure that they have a fair opportunity to defend themselves, and are given a fair determination.  And colleges and universities are unequipped to provide that, which is why deference is just as idiotic as the question asked on the law school application. Judge Beckwith is awarded no points, etc.