Michael Swartz / August 14, 2020

A Win for Due Process — and College Students

Having survived legal challenges, Trump’s DOE can fix an awful Obama-Biden rule.

Many colleges and universities won’t be playing football this fall or even housing students on campus, but justice and fairness may soon arrive there, as rules regarding the adjudication of sexual-harassment cases proposed by Donald Trump’s Department of Education survived their first court tests. Today, those rules we began writing about nearly three years ago finally take effect, supplanting the infamous “Dear Colleague” letter written in 2011 by the Obama administration.

The extraordinary length of time the Department of Education took in compiling what turned out to be 2,000 pages of new regulations was what saved these rules in the first of several court cases stacked up against it. These were the doings of leftist attorneys general and others who always believe the victim — unless, of course, she’s been victimized by a prominent Democrat. On Sunday, Federal District Judge John Koeltl denied the attempt by New York Attorney General Letitia James to place a stay on the change, declaring that the rule can instead benefit both accuser and accused by making it less likely the action would be overturned based on lack of due process. (It’s more than a little ironic that Koeltl is an appointee of Bill Clinton, who knows a thing or two about accusations of sexual misconduct.)

Agreeing that the Education Department did not act arbitrarily and capriciously, District of Columbia Circuit Court Judge Carl John Nichols, a Trump appointee, tossed out a 17-state attempt to thwart justice via stay, ruling that the (almost entirely) Democrat plaintiffs hadn’t “established that they are likely to suffer substantial irreparable harm pending further litigation.” Indeed, there’s further litigation, both in front of Nichols and elsewhere as four more lawsuits are in the pipeline. Moreover, if Democrats take both houses of Congress in the upcoming election, the rules would fall under the timeline for repeal through the Congressional Review Act.

If that happens, it’ll be a race between Congress and President Biden-Harris to put those rules to a “quick end,” as Biden has already promised to do. This is the most bitter of ironies, of course, given that Biden’s own checkered past would get him expelled from college under the old rules he wishes to restore. Tara Reade may not be a household name, but any young man accused of the sort of assault Reade has accused Joe Biden of (at least until the media circled the wagons around Biden and began its victim-shaming campaign) would’ve long since been asked to leave campus and not come back.

Considering that we’re entering a brave new world of virtual campuses and online classes galore, though, the question may be whether these rules are moot because most interactions between students will be occurring online or off-campus, thus falling under the purview of real life. But if and when college life returns to normal, here’s hoping that schools are operating under rules that are fair for both the accuser and the accused.

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