One of the best ways to determine whether a case is weak is to watch good minds try and fail to make it. This is exactly what happened in the New York Times yesterday, as Jon Krakauer and Laura Dunn teamed up in an attempt to defend the Obama administration’s incoherent, unlawful, and disastrous streamlining of the process for punishing alleged campus rapists. As Education Secretary Betsy DeVos ponders revoking Obama-era policy guidance on the matter and implementing greater due-process protections for those accused of rape on campus, Krakauer and Dunn ask her to stop.
The core of their argument is a defense of the “preponderance of the evidence” standard for proving sexual assault, which holds that an accuser has to prove only that there’s a 50.1 percent or greater probability that her claims are true:
“Preponderance of evidence” is the burden of proof used in almost all civil lawsuits, even those seeking compensation after violent crimes. Indeed, it’s the standard used in civil courts when male students expelled for sexual misconduct sue their schools under Title IX, alleging reverse gender discrimination. It would violate the principle of fairness at the heart of Title IX to allow accused men to win discrimination claims using the preponderance standard but require their accusers (who are mostly female) to prove they were victimized under a more stringent standard.
This is highly misleading. Yes, most civil cases are decided under the preponderance-of-the-evidence standard, but all of them are conducted with the full array of due-process protections. Civil litigants can employ counsel, depose witnesses, confront their accusers, conduct discovery, and then have their case adjudicated by a judge (using actual rules of evidence) and decided by a jury of their peers.
By contrast, on most campuses the preponderance-of-the-evidence standard isn’t accompanied by meaningful due-process protections. Accused students often are denied any substantial legal assistance, access to witnesses, full information about the charges against them, the power to conduct discovery, and the ability to even effectively question their accusers. Moreover, their cases are typically adjudicated before “tribunals” full of poorly trained ideologues who completely ignore standard rules of evidence.
In some instances even the very definitions of “sexual assault” and “consent” are twisted beyond legal recognition. Thus, campuses use unfair processes and low standards of proof to punish students for actions that do not violate the law. Yet these same students are still labeled “rapists.” Their lives are shattered. Their reputations are ruined.
There is an important word that appears nowhere in Krakauer and Dunn’s essay: “Constitution.” They act as if the Department of Education has complete discretion to determine the proper legal standards in such cases, which it most surely does not. Colleges are caught between the hammer of constitutional litigation and the anvil of unjust and unlawful directives from the Obama administration. DeVos isn’t just right to re-examine those directives; her re-examination is a constitutional imperative.
Leaving legal claims to the courts would not mean that campuses were taking sexual assault less seriously. Instead, they’d be treating it with the gravity it deserves.
As Krakauer and Dunn know, if a student wants to avoid adjudicating her assault claims under the higher, criminal standard of proof (when prosecutors control whether cases are brought), she can file a civil lawsuit. She’ll enjoy the benefit of the preponderance-of-evidence standard, and she’ll have the opportunity to obtain injunctive and monetary relief. Judges and juries are far more powerful than university administrators, and they can impose punishments far more severe. But they can do so only at the conclusion of a case during which the defendant receives due process.
And that’s the rub. The core goal of campus radicals is to make it easy for campuses to rid themselves of alleged predators. To get there, they push the incredible fiction that it’s somehow easy to adjudicate sexual relationships and sexual encounters. In other words, the deck is stacked on purpose, yet neither the Constitution nor the relevant federal statutes (such as Title IX itself) permit that kind of blatant bias.
The way out of this wilderness is clear: Colleges should get out of the messy business of adjudicating everything from confused, drunken hookups to terrifying physical attacks. A school should certainly have the power to separate accuser and accused while legal proceedings are pending. But it shouldn’t be able to impose its own punishments until either the courts have spoken or the litigants have reached a settlement.
Leaving legal claims to the courts would not mean that campuses were taking sexual assault less seriously. Instead, they’d be treating it with the gravity it deserves: If a student is an actual rapist, how is it in the public interest to incentivize accusers to avoid court and press their claims only before a campus tribunal that can’t impose a punishment that remotely fits the crime?
The Title IX adjudication process has grown so absurd — and the abuses are so apparent — that the demand for change transcends partisan politics. Just today, New York magazine’s Jesse Singal highlights a disturbing case out of the University of Southern California. USC punished a football player for abusing his girlfriend when both he and his girlfriend vigorously denied the charges. His girlfriend claims the university refused to believe her on the grounds that she must be a “battered woman.” It forced her into victimhood.
Due process is a core right afforded to all Americans because it’s an indispensable aid to discovering the truth, not because the patriarchy wants to bias the system against women. Ideology is a poor substitute for evidence. Obama-era directives don’t void the Constitution. Rape and assault are terrible crimes. Let’s leave their adjudication to the courts.
— David French is a senior writer for National Review, a senior fellow at the National Review Institute, and an attorney.
Editor’s Note: This piece originally misspelled Jon Krakauer’s first name.