Robin Smith / September 4, 2018

Due Process, Even on College Campuses

Secretary of Education Betsy DeVos is soon to release specifics on a major policy change.

Secretary of Education Betsy DeVos is soon to release specifics on a major policy change to restore due process to the handling of sexual misconduct charges of within the world of education. This change is necessary to end college and university administrators from trampling due process by automatically assuming guilt when allegations of sexual assault are made.

Imagine you’re accused of sexual misconduct and your accuser has made serious statements about you publicly that will certainly ruin your reputation and, in most cases, your ability to move up in the world, both personally and professionally. If the alleged act(s) occur in the workplace, community, or a church, these charges are filed in court and treated as criminal in nature, but the burden of proof is on the accuser. Should you be found guilty, then jail time, a criminal record featuring a felony (depending on the offense), and possible restitution are in your future.

However, if this is your story and your accuser is a student, as of 2011, your chances of having your side of the story heard are greatly diminished. In other words, if you’re accused in a campus or student-related sexual assault, the protections of the Constitution currently are not afforded fully to you.

Obviously, sexual misconduct — whether rape, assault, or unwanted advances — is wrong and should be punished. If every situation fell into the clearly defined category of either consensual or nonconsensual, this would not be a problem. But that isn’t the case. The unfortunate reality of the modern feminist backlash is that a mob now wants to destroy the “patriarchy” and “toxic masculinity,” no matter what the truth may be.

This approach to “justice” began in 2011 during Barack Obama’s administration via a “Dear Colleague” letter. The 19-page “guidance” was a directive to supplement the Office of Civil Rights’ Revised Sexual Harassment Guidance from 2001. This informal-yet-binding supplement greatly expanded the role and reach of an educational institution when a student was involved in an alleged act of sexual misconduct.

On page four, the directive notes that even if a student complains of an alleged act that “initially occurred off school grounds, outside a school’s education program or activity,” the school “may have an obligation to respond.” So an educational institution is to take jurisdiction in dealing with an alleged crime even if that act occurred off its property, outside a school-sanctioned event or activity, and should be beyond its scope of control. If the alleged victim is an elementary student or a minor, it’s understandable that a reporting of an alleged assault would occur. Yet, without a designation, the letter establishes that an adult student falls into this broadly written policy to assume some liability and jurisdiction in dealing with potentially criminal behavior, even when off-campus.

Keep reading the seven-year-old Obama administration letter that gave excessive and inappropriate powers to schools and you’ll find, on page 12, the reason these quasi-courts present a real problem on college campuses, where alcohol, drugs, and promiscuity are found easily. Verbatim, the federal directive reads, “OCR strongly discourages schools from allowing the parties personally to question or cross-examine each other during the hearing. Allowing an alleged perpetrator to question an alleged victim directly may be traumatic or intimidating, thereby possibly escalating or perpetuating a hostile environment.”

Because it may be traumatic, the accused, regardless of extenuating circumstances, may not be afforded the opportunity to present his version of events and challenge the alleged victim’s account. Assuredly, this is because all who are accused are guilty, right?

One of the most memorable, and still vivid, examples of how the right of due process is important dates to 2006, when the Duke lacrosse team hired a student from North Carolina Central College to strip for them at a party. Most folks could conclude this was already a bad idea. This case would now easily fall under the jurisdiction of the Obama way of handling sexual misconduct through colleges.

Three men were identified and alleged to have raped the female student who had agreed to be part of their evening. Nothing about this is good, so let’s not pretend that anyone walks away from this original scene as virtuous. After the case was tried in the court of public opinion based on race and class warfare, the evidence in court remained insufficient — yet reputations were forever damaged. All accused were not found guilty and the prosecutor was disbarred and served jail time for his mishandling of the case. Still, thank goodness for due process.

More recently, Rolling Stone magazine ran a 9,000-word exposé about the supposed “rape culture” at the University of Virginia with an extensive account of one female, “Jackie,” who allegedly had been forced into performing sex acts on five fraternity brothers. To avoid trauma or retaliation, the reporter “decided to honor her request not to contact the man she claimed orchestrated the attack nor any of the men who she claimed participated in the attack.” Rolling Stone, after protests and the production by the accused fraternity of information that refuted the claims, had to issue a retraction noting discrepancies in the “victim’s” story. And, yes, an apology was issued “to anyone who was affected by the story.” Awww, so kind.

Every one of the accused had to obtain a lawyer and live in fear and public scrutiny, but, “Gee, sorry. Oops.”

Whenever Secretary DeVos does provide the changes to policy that are currently under review, it will be a defeat to the Left’s approach of political correctness while restoring due process on campus. While it remains that a very real toxicity lies in mixing substances that inhibit the conscience and control of adults in situations that can escalate quickly and have serious consequences, Rule of Law through due process must always hold true.


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