Yesterday, the New York Times published a student activist’s op-ed with a rather provocative title: “When College Rapists Graduate.”
Now, when you read those words, what do you think? I initially thought the story must be about a prison education program. After all, rape is an extraordinarily serious crime. It was punishable by death until relatively recently in American history, and even now it’s punishable by long prison sentences.
Instead, it turns out that the piece, written by a law student and activist named Alyssa Leader, laments the outcome of a campus sexual-assault adjudication and condemns the Trump administration’s efforts to introduce a greater degree of due-process protections to the campus tribunals that hear such cases. Leader had claimed that she was sexually assaulted and harassed by another student. She filed a complaint against him with the university (Harvard), which, after applying the most lenient burden of proof and a degree of due process that would never be acceptable in any criminal or civil court, found him not responsible. Later, she sued Harvard — not the man she alleges assaulted her — because, as her lawyer told the New York Times, “The more traumatic of the two is the institutional betrayal and lack of response to her reporting.” A judge dismissed the case.
It’s against this backdrop that Leader now complains that her alleged assaulter “got a coveted job, where he’ll only have more power as time goes on.” The message is crystal clear — not only should colleges adjudicate sexual-assault claims under the most lenient possible standards, they should act as a firewall against the future careers of young men in the crosshairs. After all, unless colleges act now, the alleged harassers of today will grow up to be the Harvey Weinsteins of tomorrow.
But how easy should it be to destroy a young man’s life? According to campus activists like Leader, the answer is: very easy. When Leader condemns the Trump administration’s efforts to bring basic due process to campus, here’s what she’s condemning:
- The right to cross-examine witnesses;
- The right to a live hearing;
- The right to see the evidence against you;
- An end to “investigator-only” adjudication, in which one person investigates and adjudicates the claims against a student;
- A definition of sexual harassment that’s consistent with Supreme Court jurisprudence; and
- A definition of sexual assault consistent with statutory law.
Moreover, Leader condemns the Trump administration’s decision to make colleges responsible only for adjudicating those alleged assaults that occur “within the school’s own ‘education program or activity.’”
Let’s make this very clear: When campus activists argue against the Trump administration’s due-process guidelines, they are arguing for the power of campus administrators to punish (mainly) young men for alleged acts on or off campus without cross-examination, without seeing available evidence, without a live hearing, and under definitions of the alleged offenses far broader than those that apply under relevant law.
“Wait a second,” you might be saying to yourself. “Why such an emphasis on campus courts?” Indeed, if we’re talking about actual sexual assault, actual rape, and actual sexual harassment, each of these offenses is prohibited by criminal and/or civil law. There are existing legal processes for punishing these crimes whether they occur on or off campus. A campus tribunal is hardly an alleged victim’s only recourse.
A convicted rapist doesn’t get a “coveted job.” He doesn’t attain “more power as time goes on.” Individuals found responsible for sexual harassment in courts of law not only have to pay damages, they carry with them the stain of that public record for the rest of their lives. But no conviction in criminal court or finding of liability in civil court can occur without the very due process that campus activists decry.
For centuries, basic due process has been rightly viewed as indispensable to any decent system of justice. Leader quotes Carly Mee, a senior staff lawyer at SurvJustice, who argues that, “When the public is finally coming to terms with the reality of how prevalent sexual violence is thanks to initiatives like Tarana Burke’s #MeToo movement, the DeVos administration is simultaneously attempting to weaken Title IX protections for survivors.”
But this puts the cart before the horse. We need an adjudication to determine whether a person is indeed a “survivor.” “Believe women” is a slogan. It cannot form the foundation of a system of justice. And if the concern is with stopping serial abusers, how are often-secret campus tribunals a satisfactory mechanism? Don’t we want predators prosecuted?
I don’t know the truth of Ms. Leader’s sexual-assault claims. It is entirely possible that Harvard — even applying lenient standards and biased processes — made an incorrect determination when it ruled for the accused. Court systems that are thick with due process and laden with rules of evidence still all-too-frequently reach the wrong conclusions. But we know from ample experience that due process minimizes errors. It provides imperfect people with the best mechanism for discerning the truth.
Let’s remember, Title IX is a government statute. Title IX adjudications are a government requirement. And before the government can mandate punitive action against any citizen, at the very least it owes that citizen a fair process. On campus, the Trump administration isn’t departing from norms and values. It’s restoring them to their rightful place in American law.