We've written extensively on the blog about sexual accusations made on college campuses that have resulted in tribunals that have not provided due process for the accused.
But now Justice Ruth Bader Ginsburg, who supports the MeToo Movement and prides herself on being a feminist, is weighing in with the same concern. In an interview with Jeff Rosen, the Justice said that she is pleased about the public awareness of sexual misconduct but concerned that the accused might not be being accorded due process:
Rosen: What about due process for the accused?
Ginsburg: Well, that must not be ignored and it goes beyond sexual harassment. The person who is accused has a right to defend herself or himself, and we certainly should not lose sight of that. Recognizing that these are complaints that should be heard. There's been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that's one of the basic tenets of our system, as you know, everyone deserves a fair hearing.
Rosen: Are some of those criticisms of the college codes valid?
Ginsburg: Do I think they are? Yes.
Note that Ginsburg was asked about due process, but not campuses specifically. The fact that she immediately suggested college codes of conduct as an example of a policy that sometimes violates "the basic tenets of our system," says a great deal about the glaring unfairness of the modern approach to Title IX, the federal statute that requires universities to investigate sexual harassment and assault. And Ginsburg didn't just make note of the controversy; she explicitly said critics of the current procedures have a point.
Education Secretary Betsy DeVos has rescinded (here and here) the Obama administration's 2011 guidelines for handling sexual misconduct accusations on campus and that almost ensured that the accused would not have a chance to defend himself (and it is generally a him).
The Obama guidelines in effect made "believing the victim" the centerpiece of addressing such allegations. Rosen asked about this:
Rosen: I think people are hungry for your thoughts about how to balance the values of due process against the need for increased gender equality.
Ginsburg: It's not one or the other. It's both. We have a system of justice where people who are accused get due process, so it's just applying to this field what we have applied generally.
We are for punishing sexual assault to the utmost severity the law allows, but since not everybody accused is guilty, the erosion of due process, especially during the Obama years, was disturbing.
Good for Rosen for getting Ginsburg to speak on this topic.