Short Take: The Malleability of “Due”

A survey conducted for FIRE, the Foundation for Individual Rights in Education, would appear, on its face, to be pretty good news.

new survey from the Foundation for Individual Rights in Education finds that a vast majority of college students support fundamental due process protections in campus disciplinary hearings in order to ensure they are fair.

By “vast majority,” it might appear they mean “vast majority.”

Ninety-eight percent of students said they believe the right to due process in college was “very important” or “important.”

Well, that certainly seems to be a vast majority, right? Or maybe not.

For every protection except one — the right of the accused to make copies of evidence in a sexual misconduct case — a majority of students supported the protections. Despite that majority, the sexual misconduct scenario yielded lower student support in almost all categories. When considering a sexual misconduct case:

  • 80 percent support the presumption of innocence, compared to an average of 85 percent of respondents across all three scenarios.
  • 48 percent support the right to make copies of evidence, compared to 60 percent over all.
  • 68 percent support cross-examination, compared to 75 percent over all.
  • 72 percent support a unanimous decision required for expulsion, compared to 78 percent over all.

Samantha Harris tries to offer an explanation for this seemingly inexplicable differential.

“We all tend to support rights more or understand the need for critical rights more when we can put ourselves in a situation where we might need those rights,” Harris said. “Generally speaking, it might be easier to put oneself in the situation of being accused of breaking a rule, something general like that, than of a specific and heinous type of misconduct.”

It has always been a rule of life that people only care about such things when it touches their lives, and as Sam says, most people don’t see themselves as being the accused in a rape complaint. While this may be true, this is an unsatisfying explanation. We’re not talking about tithing their future earnings to Due Process For Rapists, but about a concept, due process. It costs nothing to support the concept, as reflected in the broad support for everything but sexual misconduct.

Hence, I offer two alternative explanations, neither of which speak well to the sensibilities of the little darlings. First, there’s the indoctrination problem. Everything is rape. Every woman is raped. All the time. By everyone (except you, natch). Every raped woman’s life is destroyed, as they huddle in corners sobbing because of their PTSD. And most importantly, anyone who doesn’t grasp this “truth” is a rapist who should be castrated before being burned at the stake. Plus, you’ll never get another date.

Hyberbolic, for sure, but that’s the point of the indoctrination. Keep pounding away and the problem becomes so overarching, so overwhelming, that there can be no room for fundamental fairness. What person could possibly concern themselves with fairness as an epidemic of rape overtakes every woman on campus?

But none of this is real? That’s just, like, your opinion, man.

The second explanation is that students don’t actually understand due process. Given that they can’t name three branches of government (did they miss that day in their gender studies and Nietzsche class?), this should come as no surprise. While they may have a general sense of “fairness is good,” it becomes less good when it fails to achieve an outcome they believe to be necessary.

This way of thinking reflects a failure to grasp what due process means, as there can be no belief in due process if it only applies when it achieves an agreeable outcome. Sometimes the bad guy wins. Sometimes, the outcome isn’t what you believe it should be.

Scott Lewis, a partner with the National Center for Higher Education Risk Management, and co-founder of the Association for Title IX Administrators, said recent events may also affect student support.

“Given the context of recent events like the Me Too movement and Times Up movement and the increase of reporting of sexual assault in particular, students are interested in more accountability,” Lewis said.

Lewis unintentionally recognizes the problem. It’s not that students aren’t in favor of due process. It’s that they are all for due process provided it holds the people they have been taught to hate accountable. Everybody loves due process as long as the people you know are the bad guys get burned, as is their due.

12 thoughts on “Short Take: The Malleability of “Due”

  1. Dave

    What people consistently fail to realize in their haste to strip rights away from those they hate is that ultimately, how we treat the accused in any situation isn’t about the accused, nor what they did, nor the victims, nor anything else – ultimately, it is about US. It reflects on US, who we are as a society, whether we are a society of fairness and laws, and so if what we do changes based on how much we hate (or like) the accused or their crime, that is our failure, our evil. Due Process is not “coddling criminals” – it is showing that we put justice and law above everything else.

    1. SHG Post author

      This is what I refer to as the low-hanging fruit argument, that what’s used against your enemies comes back to be used against you. It may be true, but it ignore the underlying principle. The virtue of due process isn’t the acceptability of its results, but the means by which the results are attained.

      1. Dave

        That wasn’t quite what I was getting at. While it is true that low-hanging fruit argument is one for consistency, I was (perhaps poorly) noting that the quality of our Dur Process overall reflects on our society. One component of that quality is consistent application to everyone. Another one is that the processes themselves are ones that aim for maximum reliability and fairness in terms of the means used. To the extent it fails on any of those counts reflects on who we are.

        Good processes are ones that ensure more reliable results. One Due Process item not mentioned in the survey is the whole junk forensic science issue, but while that is part of it, it is also its own can of worms.

        1. SHG Post author

          Good processes are ones that ensure more reliable results.

          That’s an interesting way to put it, as results are only reliable in retrospect. A premise upon which due process is grounded is Blackstone’s Ratio, that it’s better to let ten guilty people go free than convict one innocent person. We recognize that there is no process free of flaws and therefore are constrained to choose whether to err on the side of convicting innocent people or letting the guilty walk. It’s not because due process is so reliable, but because there is no guarantee of reliability and we have chosen to err in one direction rather than the other.

        2. Nemo

          Process design’s a decent way of looking at it, but the results aren’t necessarily the same if the optimization differs, even using the same system.

          While we want the judicial system to convict the guilty while exonerating the innocent, that’s unrealistic. It’s even unrealistic to try to design for the best balance possible, because such a balance is metastable, at best. That means that one goal or the other has to take priority. The other may modify the primary, but the primary controls outcome.

          So, what do we want to optimize for, convicting the guilty, or protecting the innocent? Since the first is the natural impulse, while the second is Blackstone’s reasoned response to that impulse, I would say the answer’s pretty obvious, from a systems standpoint.

          As for output, the measure of quality and consistency differs by goal. The metrics of convictions are obvious. The measure of protecting the innocent isn’t how many guilty “escape justice”, it is how many innocent people the system convicts – a number which can never reach zero, BTW.

          Then again, nursing impossible goals as achievable seems quite the fad, these days.



  2. W. Justin Adams

    “This way of thinking reflects a failure to grasp what due process means, as there can be no belief in due process if it only applies when it achieves an agreeable outcome.”

    As the Queen of Hearts might put it, “Verdict first—process afterwards.”

  3. Gregory Smith

    So many people are willing to accept unfair processes they believe will never aplly to them, until the day that it does. The typical initial reaction is disbelief — ”how could this happen to me? I’m not one of ’them’”

  4. Brian Cowles

    “It costs nothing to support the concept, as reflected in the broad support for everything but sexual misconduct.”

    I think you’re vastly understating things here. If we ignore the one 48% and the one 37%* here, every single percentage in the study is at 60% or greater**. Moreover, the support rates for sexual assault are no more than 7 percentage points lower than the average in every case other than the exception noted above.

    Looking at the survey results from less pessimistic eyes, I see two main things. First, around 60% of college students both support and mostly understand due process, even applying it to the lepers of modern social justice. Second, people need to be educated better on why copies of evidence are important, and why being able to appeal a not-guilty verdict isn’t part of American ideals. I’ve always known that my high school civics classes took root comparatively well in my case, but neither of the two things listed previously were ever covered, nor were they covered in the political science courses I took in college. It wouldn’t surprise me to learn that most college students don’t really know much of anything about them.

    * If 63% of people support being able to appeal of a not-guilty decision, then 37% of people oppose it.

    ** I’m also excluding the support of the single-investigator model, as the FIRE claims that model hurts due process. The percentages of those who do not support the single-investigator model are 72-74%.

    1. SHG Post author

      That the majority support due process might be good news. Or it might seem to be good news. Or it might mean they have no meaningful grasp of due process at all and at best support it as a vague platitude. Is it only the seven percent who abandoned due process when their outcome was more important than the process who doesn’t understand it? It’s possible, but all things considered, it seems exceedingly unlikely given that 63% simultaneously support the appeal of a not-guilty verdict.

      And then there’s the indoctrination problem. They can all recite that one in four women will be raped in college. What percentage can only name one Supreme Court Justice, Judge Judy?

      1. Brian Cowles

        I’ll start with the last question: 9.6% (+/- 3%) in the study you reference chose “Judith Sheindlin”, which is not quite the same as picking “Judge Judy”, as opposed to 61.6% getting the answer right. (Odd how the 61.6% of correct answers is consistent with the vast majority of answers to the FIRE’s survey.) I should also point out that the survey question was not fill-in-the-blank; only one Supreme Court Justice was among the four possible answers, and she had only been appointed five years before. (It’s also worth noting that 21.7% of the incorrect answers went to a former judge on the Second Circuit whose middle name is Warren – he could have been mistaken for the head justice during the Warren Court.) What would the answers have been if Roberts, Scalia, or Ginsburg had been used instead of Kagan?

        As for the rest, there’s nothing new in your response, and I would just be restating my previous comment.

        1. Nemo

          “and she had only been appointed five years before.”

          The balance of your comment appears to be how the correct answer isn’t enough of a gimme, since the students polled had only had circa 25% of their lives to learn the name of the newest justice. Five years isn’t long enough for them to have learned it.

          Well, that and your complaint that the obviously bogus answers weren’t bogus enough. Maybe Darth Vader and Darth Cheeto should have been used, instead of Judge Judy and the judge you mentioned.

          I could say more, but I believe your own words speak for themselves, regardless of your intent. Or did you intend on asserting that college students are too ignorant to recognize the name of a justice who’d held the position longer than a Presidential term of office unless the other three options are pretty much screaming “wrong answer”?

          I mean, I have a rather low opinion of how educated and informed college students are, but I am not even close to how you describe them. Harsh, man. Harsh.



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