August 21 2011
If you are sending a child off to college this fall, you hope that, if your child has the misfortune or bad judgement to land in trouble, you can count on fair treatment from the school. You hope this sons and daughters alike. But you can't necessarily count on it for your son.
One of the most troubling trends on college campuses is the presumption of male guilt whenever charges of violence against women are made.
Don't get me wrong. Those who perpetrate violence against women must be punished to the full extent of the law. When the crime is rape, the punishment must be extremely harsh. But due process must be observed. That is a bedrock principle of our legal tradition.
Or it was. Peter Berkowitz, a law professor, has written a disturbing piece for the Wall Street Journal in which he shows how due process often goes out the window when young men are accused.
Unfortunately, the Obama administration has, according to Berkowitz, further reduced the chances that a young man will be accorded fair treatment:
On April 4, Assistant Secretary for Civil Rights Russlynn Ali, head of the Department of Education's Office for Civil Rights (OCR), distributed a 19-page "Dear Colleague" letter to "provide recipients with information to assist them in meeting their obligations."
At the cost of losing federal funding-on which all major institutions of higher education have grown dependent-colleges and universities are obliged under Title IX of the Civil Rights Act (which prohibits discrimination on the basis of sex) to thoroughly investigate all allegations of sexual harassment and sexual assault on campus, including the felony of rape. They are also obliged, according to Ms. Ali, to curtail due process rights of the accused.
OCR's new interpretation of Title IX "strongly discourages" universities from permitting the accused "to question or cross-examine the accuser" during the hearing. In addition, if universities provide an appeals process, it must be available to both parties-which subjects the accused to double jeopardy.
Most egregiously, OCR requires universities to render judgment using "a preponderance of the evidence" standard. This means that in a rape case, a campus disciplinary board of faculty, administrators and perhaps students serves as both judge and jury. Few if any of these judges are likely to have professional competence in fact-gathering, evidence analysis or judicial procedure. Yet to deliver a verdict of guilty, they need only believe that the accused is more likely than not to have committed the crime.
This is the lowest standard. It is much less demanding than "beyond a reasonable doubt," which is used in the criminal justice system, and the intermediate standard of "clear and convincing proof." Yale, Stanford and many other universities have rushed to comply with OCR's directives.
The Office for Civil Rights compounds the problem by issuing directives that are echoed in biased material that university bureaucracies produce to guide university officials. Berkowitz observes:
The materials are likely to include dubious statistics about the incidence of sexual assault; vulgar generalizations that men are controlling, angry and deceitful; and assurances that women neither lie nor make errors in alleging that they have been sexually assaulted.
Isn't it time to depoliticize charges of violence against women? These guidelines seem to be left over from the most radical era of the feminist movement. It would be nice to see universities promote fairness and due process over a passé ideology.