Oddly enough, it’s progressive California judges who are dealing the movement its worst blows.
When future historians reflect back on our present moment, it’s entirely possible that liberal California judges, rather than the Trump administration, will get credit for pulling the plug on the progressive experiment of denying basic due-process rights to American male college students. That’s the takeaway from a stunning Los Angeles Times report from late last week. California’s university justice system — by far the largest in the United States — is reeling not because of Trump’s Department of Education but because of a series of rulings from California courts:
Colleges and universities across California are scrambling to revise the way they handle sexual misconduct cases after a state appellate court ruled that “fundamental fairness” requires that accused students have a right to a hearing and to cross-examine their accusers.
The California State system, for example, has “stopped proceedings in 75 cases.” Other colleges in the state are rapidly revising their policies.
As the Times relates, the legal straw that broke the camel’s back was a ruling from California’s Second Appellate District in a case brought by former University of Southern California tight end Bryce Dixon. The university expelled Dixon after it ruled that he had “nonconsensual sex” with another student. The court found that when a student faces “severe disciplinary sanctions,” and when witness credibility is “central to the adjudication of the allegation,”
. . . fundamental fairness requires, at a minimum, that the university provide a mechanism by which the accused may cross-examine those witnesses, directly or indirectly, at a hearing in which the witnesses appear in person or by other means (such as means provided by technology like videoconferencing) before a neutral adjudicator with the power independently to find facts and make credibility assessments.
In plain language, the court’s ruling requires schools to afford accused students basic due-process rights, restoring a system of justice that existed for centuries before #BelieveWomen corrupted the legal landscape.
In Dixon’s case, the accuser (identified only as “Jane Roe”) made a vivid and disturbing allegation that Dixon used brute force when she was drunk and high to overcome her resistance to sex and treated her in a humiliating and demeaning way throughout the encounter. Dixon described Roe as willing and enthusiastic, and claimed that she lied after the fact because she could have lost her job as an athletic trainer for having consensual sex with a player. In short, the case was he said/she said, and credibility determinations were vital to the outcome.
But by policy, USC denied accused students an open hearing and the “right to confront his or her accuser.” Moreover, the same person investigated and adjudicated each accusation. The investigator determined whether the accused was guilty, and guilty students had limited rights to appeal.
The court was singularly unimpressed:
The notion that a single individual, acting in these overlapping and conflicting capacities, is capable of effectively implementing an accused student’s right of cross–examination by posing prepared questions to witnesses in the course of the investigation ignores the fundamental nature of cross-examination: adversarial questioning at an in-person hearing at which a neutral fact finder can observe and assess the witness’ credibility.
There are three notable things about this ruling.
First, the case in question took place at a private university. In other words, the court wasn’t determining the case on constitutional grounds but rather on grounds potentially much more favorable to the university: It was just asking whether the university’s procedures were “fundamentally fair.”
Second, it remains remarkable that universities ever believed there was anything remotely workable or proper about procedures so heavily biased against the accused. They allowed a radical ideology — #BelieveWomen — to trump everything we’ve learned about the fundamentals of justice across thousands of years of human experience. Simply put, there is no category of accusation that is so obviously and inherently true that justice demands denying a meaningful defense to the (mostly male) students accused of sexual assault.
Third, it is vitally important that California courts delivered this serious blow to campus kangaroo courts. It has never been the case that pushback in favor of due process has come only from conservatives. Progressive law professors and many other progressive voices have sounded alarms for years. It is critical that the legal counterattack hasn’t come exclusively from the (hated-by-the-academy) Trump administration or from (hated-by-the-academy) Trump-appointed judges. While Obama and Clinton appointees have delivered their share of rulings against universities, no one can reasonably argue that the California state courts are in thrall to Trump.
As a practical matter, this means that even if a #BelieveWomen-subscribing Democrat beats Trump in 2020, his or her new regulations won’t overturn these court decisions, and universities across the nation will still have to grant students the due-process protections required by the Constitution and state law.
Obama-era Department of Education guidance (robustly supplemented and advanced by campus ideologues) has inflicted an immense amount of suffering on young men and young women, but the silver lining to this dark cloud is that our legal system has proven to be relatively robust across the ideological spectrum. Our constitutional commitments may indeed be less fragile than they seem, and the legal nightmares caused by #BelieveWomen may soon be seen more as cautionary tales than as harbingers of an unjust future.