We're for punishing perpetrators of rape to the utmost severity the law allows, but the Obama era lifting of due process for those accused in campus rape cases disturbed us no end.
This erosion of civil rights, Daniel Henninger notes in the Wall Street Journal, came, ironically, in the form of a letter on how to administer Title IX from the Education Department's Office of Civil Rights.
Secretary of Education Betsy DeVos is expected to rescind the Obama rules shortly. This is good news. Henninger writes:
On the crucial issue of evidence, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” standard of proof. It will tell schools they should give equal legal treatment to both parties in these cases, as in the calling of witnesses or the presence of attorneys.
Formal rules will emerge after a public notice-and-comment period, which is the federal rule-making requirement President Obama’s appointees tossed aside.
While the interim guidance isn’t mandatory, the department will retain and if necessary use its enforcement authority after the formal rules emerge.
Mrs. DeVos is not going to threaten to withdraw a school’s federal funding, as happened with the Obama diktat. That hammer likely won’t be necessary.
By now most institutions want a modus vivendi on this issue to replace what had become a crudely run jihad by left-wing lawyers in the Obama Education Department and the network of ideological enforcers their order created on the nation’s campuses.
. . .
It is difficult to express what a big deal this is—or should be. Basic due process guarantees have existed in English-language law since they were embedded in the King John’s Magna Carta in 1215. The U.S. Constitution’s Sixth Amendment reads: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . and to have the assistance of counsel.”
One reason schools caved to the Obama department's denial of civil rights is that the administration threatened to withhold federal money. But that is not the only reason: as Henninger notes, the ideas embodied in the OCR letter had been developing in academia for a long time. Sexual offences were considered such a special category of injury that normal legal rights and procedures were to be suspended.
Numerous sexual misconduct "convictions" under the Obama rubrics have been overturned–convictions is in quotation marks because most of these cases were handled without so much as a nod towards civil rights and due process. DeVos is moving to end this unfair system.