Question of the Week

YES: Time to end kangaroo court tribunals

By Donald A. Downs

Tribune News Service

An achievement of the modern feminist movement has been making society and policymakers more aware of such injustices as domestic violence and sexual assault.

This was especially needed in higher education because colleges improperly resisted acknowledging sexual crimes for far too long.

But reform movements can sometimes go awry, which appears to be the case with the Title IX regulations that now govern the handling of sexual misconduct charges on college campuses. The Trump administration should end these kangaroo court-type practices.

The situation has engendered a growing list of injustices against the accused, accompanied by a host of recently successful lawsuits as schools find themselves in what amounts to a Catch-22 predicament. This is undermining legitimate and necessary efforts to punish sex crimes on campus. No one wins in this state of affairs.

In 2011, the U.S. Department of Education began placing the heavy hand of the federal government upon the scales of campus justice in cases involving sexual misconduct, threatening to withhold federal funds if its dictates were not carried out to the letter.

This heavy-handedness was the product of administrative fiat in the form of "Dear Colleague" letters, rather than democratically accountable administrative procedures, providing a case study of how unaccountable administrative power can harm constitutional rights.

The fruit lies in the pudding. As a large group of Harvard Law School professors reported in 2014, the procedures spelled out in the Dear Colleague "guidance document" severely restricted the ability of those accused of sexual misconduct from presenting their side of the story and challenging the accusers.

Cross examination — the single most effective way to get at the truth in a challenged case — was virtually disallowed. In many cases, it became difficult for the accused to even discover all the facts relating to the charges.

In addition, schools were required to lower the standard of proof of guilt from the previously prevailing standard of "clear and convincing evidence" — such as substantial probability of guilt — to a "preponderance of the evidence" test, which means that guilt is merely more likely than not to be present.

These procedural changes too often coexist with tribunal training and campus political pressures that assume culpability, creating a de facto presumption of guilt in actual practice. In one recent case, a student was found guilty of sexual misconduct even though he was unconscious during the act, unlike his accuser.

Defenders of the new procedures often cite studies that support the claim that a "rape culture" is prevalent on campuses across the land, rendering due process a hindrance to achieving justice for victims.

But many experts have challenged these studies for including exceedingly expansive definitions of assault. Regardless, history has proved that due process rights are indispensable in order to guard against rushing to judgment and convicting the innocent.

The last thing we want is a campus sex witch-hunt reminiscent of the now widely discredited day care sex cases of the 1980s and 1990s. Unfortunately, a growing number of reasonable observers believe we have entered this forbidden territory.

Criminal law has always wrestled with the tension between the rights of the accused and the need to convict the guilty. But our constitutional order has remained committed to the principles of due process and the presumption of innocence for a simple yet profound reason: as Supreme Court Justice Robert Jackson wrote in dissent in Korematsu v. U.S. (1944), legal guilt is "individual," not group or society based, lest we convict innocent people in the name of a higher cause or because of what others do.

Let us get at the culpable the right way. A good place to begin reform: Have campus tribunals read the seminal studies of the national "Innocence Project," which highlight how rushes to judgment can lead to mistaken verdicts.

Donald A. Downs is a research fellow at the Independent Institute in Oakland, Calif., and a professor of political science, law and journalism at the University of Wisconsin. His latest book is "Restoring Free Speech and Liberty on Campus." Readers may write him at 303 North Hall, Madison, WI, 53706, or email him at dadowns@wisc.edu.

NO: Don't set back the fight against campus sexual assaults

By Deborah L. Brake

Tribune News Service

Earlier this month, Betsy DeVos announced her Education Department would review Title IX guidance on sexual assault issued by the Obama administration, parroting men's rights groups' complaints about false accusations and kangaroo courts.

That is a shame for the one in five college-age women and substantial numbers of men subjected to sexual misconduct, for the institutions responsible for campus safety, and even for accused students.

The Department of Education's guidance, issued in 2011, responded to the pervasiveness of campus sexual assault and the mishandling of it by universities.

Leaving these matters to criminal courts is no answer: Prosecutors rarely take these cases, and when they do, juries don't convict.

Worse, victims are put on trial: Why did she go to his dorm room? What did she think would happen if she got drunk and passed out? If she consented to sex with a football player who she just met, wouldn't she have consented to sex with his friends right afterwards?

Many student victims of sexual assault do not want to go through a criminal trial or put their assailant in jail.

Regardless of criminal law outcomes, Title IX requires schools to respond to sexual assault as a civil rights violation.

Survivors of sexual assault have varying needs. Some need assurance they won't run into their attacker on campus; others may need accommodations to housing, course schedules or academic work. Title IX requires schools to provide such remedies through a fair and equitable process.

The 2011 guidance protected not just complainants but also accused students. Ironically, Secretary Devos' examples of unfairly treated men are the results of failures to follow the 2011 guidance, which required fair notice, trained investigators, and equal opportunities to present and challenge evidence.

One of the last enforcement actions taken by the Obama administration found a college in violation for cutting corners in the process used to find a male student responsible for sexual assault.

The Trump administration cannot unilaterally rescind Title IX. But the withdrawal of the 2011 guidance leaves schools to figure out how to meet their obligations.

Many universities have said they will continue to follow the 2011 guidance, recognizing it has improved their responses to sexual assault. But what about the institutions that decide to make up their own rules when an accused student is a valuable athlete, a popular fraternity member or a young man with connections and a "bright future"?

The saga at Baylor University in Waco, Texas, shows how institutional incentives to cover up sexual assault can tilt the process against complainants.

Critics charge that by requiring schools to use the preponderance of the evidence standard — the normal civil proof standard — the guidance tilted the scales against accused students.

But most colleges already used the preponderance standard for all student misconduct, including sexual assault, well before 2011.

And both Republican and Democratic administrations have found schools out of compliance for not using the preponderance standard as far back as the mid-1990s.

Raising the proof standard would make proving sexual assault extraordinarily difficult, reinforcing rape myths about false accusers and women who say no when they really mean yes.

The starting point for the 2011 guidance was that sexual assault victims should not be treated more skeptically than accused students or victims of other serious misconduct.

The Trump administration's starting point was laid bare in Acting Assistant Secretary Candice Jackson's comment in The New York Times this summer that "90 percent" of student sexual assault complaints involve mutually drunk encounters and regrets about consensual sex.

She later apologized, but the remark — backed by zero evidence — aptly describes the department's premise in pushing the reset button on Title IX.

By foregrounding this false narrative, the secretary's reversal on Title IX sets back the movement to end campus sexual assault not just a matter of years, but decades.

Deborah L. Brake, a leading expert on Title IX, is the John E. Murray Faculty Scholar and a professor of law at the University of Pittsburgh School of Law. Readers may write her at 3900 Forbes Avenue, Pittsburgh, PA 15260.

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