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June 7 2016

Kafka Comes to Campus: Punishment without Evidence

Charlotte Hays

Quote of the Day:

This academic year will be remembered for its psychological crack-ups over Halloween costumes (Yale), faculty intimidation of student journalists covering protesters (the University of Missouri) and purges of single-sex social clubs (Harvard). But the dishonor roll isn’t complete without documenting how the Obama Administration is further eroding due process on campus.

--the Wall Street Journal in an editorial headlined "Punishment without Evidence on Campus"

The Justice Department under President Obama has done a lot to undermine due process for the accused in campus sexual misconduct cases. But now they are trying to go even further. Now accused students can be disciplined before a hearing has been conducted. In a Kafkaesque twist, anonymous allegations are sometimes enough.

In the famous 2011 "Dear Colleagues" from the Education Department's Office of Civil Rights, the protean Title IX statute was interpreted in such a way that schools that accorded the accused the right of due process might actually be in danger of losing federal funding.

More letters began appearing in April. One particularly expanded the definition of sexual harassment.  It grew out of a DOJ investigation of a protocol grievance at the University of New Mexico. The Wall Street Journal explains:

Justice said UNM violated Title IX in part because of a “failure to provide effective interim safety measures.” Interim measures are imposed on an accused student before any official ruling on guilt. They can include provisional suspensions for the accused; no-contact instructions akin to a restraining order; restrictions on when students can use libraries, dining halls and athletic facilities; evictions from dorms; and bans on extracurricular activities.

Some of this may be appropriate if someone poses an immediate threat to public safety, but UNM was sanctioned for being insufficiently punitive. “For example,” Justice writes, “a respondent was suspended during the pendency of a sexual assault investigation but applied for graduate school at UNM and was granted admission prior to the time OEO completed the investigation.” OEO is UNM’s Title IX enforcement office.

In other words, punishment first, determination of culpability second.  Or maybe the school should just determine guilt without bothering to examine the evidence and let it go at that? You might think that is being proposed, given that the DOJ criticized the university because a student who initially was suspended but readmitted on a finding of not guilty. This evoked criticism because the DOJ regarded it as insensitive to the accuser, who was not officially informed that he would be returning.Never mind that an investigation found the accusations unfounded. 

The White House encourages anonymous reporting. No matter the trauma of reporting a rape charge, the possibility of an incognito report raises the possibility that accusations will be fabricated. The Wall Street Journal concludes:

One problem is that Justice and Education are supposedly offering mere “guidance,” not specific regulations, so schools will have to infer what they must do from letters like the one to the University of New Mexico. But they’ll get the message. Some 228 colleges and universities are under investigation for Title IX violations, and complaints to the Education Department’s Title IX office have increased 502% over four years.

Either the Vikings are invading U.S. campuses or Title IX has become a political weapon. Maybe the liberal professors and administrators cheering on this campaign can’t be expected to notice they’re supporting disciplinary standards they’d never accept in criminal justice or policing.

But maybe they’ll eventually move to defend their own interests, if not their supposed ideals. One of U. of New Mexico’s Title IX errors, according to the Justice Department, was not stripping a professor accused of sexual harassment of his teaching duties, as an “interim measure.”

So maybe if we can't count on a respect for western jurisprudence, self-interest will help professors see the injustice of punishment without evidence.



Independent Women's Forum is an educational 501(c)(3) dedicated to developing and advancing policies that aren’t just well intended, but actually enhance people’s freedom, choices, and opportunities. IWF is the sister organization of the Independent Women’s Voice.​
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