The Obama administration’s rollback of due process on college campuses beget an environment in which students—young men in particular—faced a climate of potential persecutory prosecution, one in which their fundamental rights are stripped of them an they are subject to what more or less amounts to a campus kangaroo courts. Now the Trump administration signaling an intention to roll back such poisonous reforms, and a professor and a writer who have done a great deal of research into the campus sexual politics surrounding this policy are all for it.
Writing in USA Today, professor KC Johnson and author Stuart Taylor, Jr. (authors of The Campus Rape Frenzy) commend the Trump federal educational department for “[signaling] strong disagreement with the Obama administration’s aggressive erosion of due process protections for college students accused of sexual assault,” in particular for education secretary Betsy Devos’s* assertion that “a system without due process protections … serves no one.”
Devos’s position contradicts that of the Obama administration, which “had told colleges to avoid any due process safeguards that would ‘restrict or unnecessarily delay the protections provided by Title IX’ to accusers.” In practical terms this means that campuses can abandon constitutional safeguards when it comes to sexual assault cases, with the staggering effect that “an innocent student has as much as a 1-in-3 chance of being found guilty by today’s campus sexual assault tribunals.”
The Obama education policy, the authors point out, was inspired by “the counterfactual claim that sex crimes…were sweeping through the nation’s campuses like an epidemic.” The number of sex crimes actually dropped significantly from the late 90s onward. In spite of this, “the Obama-era [Office of Civil Rights] ordered universities to use the lowest possible standard of proof (preponderance of evidence, or 50.01%) and allow accusers to appeal not-guilty findings,” as well as “discouraged colleges from allowing cross-examination of accusing students; and urged institutions to deny accused students any right to a hearing by giving all power to a single bureaucrat to act as investigator, prosecutor, judge and jury.”
During DeVos’ meetings, the accusers’ rights organization Know Your IX organized a protest outside the Department of Education, demanding a blanket retention of Obama’s policies. The group was joined by the leading congressional foe of campus due process, Senator Kirsten Gillibrand, D-N.Y. She maintained that “if Secretary DeVos rolls back these protections” — each of which had placed a thumb on the scale to increase, sometimes dramatically, the chance of a guilty finding — “justice will not be possible.” This came from a senator who had publicly described former Columbia student Paul Nungesser as a “rapist” even after he was cleared by both the university and the NYPD.
Ironically, as Gillibrand was protesting outside the Education Department, a New York appellate court upheld a lawsuit by an accused student against Skidmore College, located in the upstate New York congressional district that the senator had once represented. In October 2015, the Skidmore accuser told college officials (not the police) that a male student had forced her to perform oral sex 21 months previously As at most colleges since implementation of the Obama-era policies, Skidmore’s adjudication process was geared toward a guilty finding. The accused student had no right to cross-examine his accuser, and he wasn’t told the specifics of the allegations against him. The five-judge New York appellate panel also faulted the college for giving weight to “little more than gossip” about the accused student. The judges ordered Skidmore to re-admit him and expunge his disciplinary record.
“The last six years,” the authors note, “have shown that furious condemnations will greet any effort to establish a fairer campus system…But fairness is what we need. And while a shift in federal policy will not, alone, restore justice on campus, it’s a necessary first step.”