Law & the Courts

Black Lives Matter on Campus Also

Opponents of a white nationalist-led rally hold a Black Lives Matter flag in downtown Washington, D.C., August 12, 2018. (Leah Millis/Reuters)
Civil rights for women shouldn’t come at the cost of civil liberties for black men.

Last Thursday, the NAACP suspended its Saint Louis County chapter president, a man by the name of John Gaskin. He was accused of two offenses. The second was a conflict-of-interest allegation that doesn’t concern us, but the first offense should. The NAACP actually suspended a chapter president in part for supporting greater due process for black men accused of sexual misconduct on campus. They suspended him for supporting civil liberties.

The background is relatively simple. The Missouri state legislature has been debating a campus-due-process bill that, among other things, would allow students accused of sexual assault to retain an attorney, learn of the charges against them, and cross-examine the accusers. Interestingly, it would deal with the persistent campus problem of amateur adjudicators by “borrow[ing] judges from the existing administrative court system to hear appeals.”

The Kansas City Star claimed that the proposed law “would give the accused more power than any other state.” If true, that’s a sad commentary on other states. And local activists opposed the law not only on the grounds that cross-examination (one of the essential elements of due process in American jurisprudence) “re-victimizes survivors” but also because the other elements (again, mainly representing basic elements of due process found in all civil and criminal courts) are — in the words of Wendy Davis, director of the Women and Children’s Advocacy Project in Boston — “designed to message females that, especially in the context of education, you’re supposed to be raped and be quiet.” Why? Because due process means “there’s no upside” to reporting. “It’s all burdens, hurdles, punishment, stigma, suffering.”

This of course assumes that the person reporting is actually a survivor, something we need due process to fairly demonstrate.

Gaskin stepped in to note that the “the denial of due process at Missouri’s colleges disproportionately impacts African-American men.” And the best available evidence indicates that he’s correct. As Emily Yoffe noted in an indispensable 2017 essay in The Atlantic, there is rising alarm that the Obama-administration-mandated changes in Title IX adjudication meant that increasing numbers of black men are facing false accusations, with a decreasing number of legal tools available to defend against them.

The federal government has been inexcusably lax in gathering statistics measuring the real-world effect of its legal mandates, but the anecdotal evidence is alarming. Yoffe points to the example of Colgate University. In the 2013–14 academic year, black students were 4.2 percent of the population, but “black male students were accused of 50 percent of the sexual violations reported to the university, and they made up 40 percent of the students formally adjudicated.” Across three academic years, “black students were accused of 25 percent of the sexual misconduct reported to the university, and made up 21 percent of the students referred for formal hearings.”

Harvard Law professor Jeannie Suk Gerson, one of the nation’s foremost experts on Title IX adjudications, has reported that the administrators and faculty members who work on campus sexual-assault cases say that “most of the complaints are against minorities.”

Moreover, the modern attack on campus due process means that black men are facing an old problem. Yoffe quotes another Harvard professor, Janet Halley, who accurately notes that “American racial history is laced with vendetta-like scandals in which black men are accused of sexually assaulting white women,” followed eventually by the revelation “that the accused men were not wrongdoers at all.”

But don’t tell that to the NAACP’s national leadership. Gaskin’s position conflicts with the “NAACP’s January 2019 opposition to proposed rule changes at the federal level that would have largely the same effects as the proposed Missouri legislation,” as NAACP national president Derrick Johnson wrote in the suspension letter he sent to Gaskin on Thursday. The NAACP is opposed to the Trump administration’s efforts to enhance campus due process, so it is opposed to state-level efforts to accomplish the same goal.

While the NAACP is free to adopt the positions that it wants to adopt — and to force its chapter leaders to toe the company line — its position is absurd and self-defeating. The NAACP’s Saint Louis County chapter president is right. Its national leadership is wrong. Who has suffered more from rigged tribunals and kangaroo courts than African Americans?

As Scott Greenfield writes in his Simple Justice criminal-defense blog, “there is a price to be paid for creating and maintaining alliances.” The NAACP is in lockstep with much of the Left in opposing due-process reform. It’s being a good ally, and it’s framing its support as a simple defense of Title IX, a key civil-rights statute. But nothing about Title IX mandates depriving young men of their civil liberties. And when there are acute dangers for black men — especially when those dangers bring up the ghosts of past injustices — the NAACP should think twice before it elevates the ideological imperatives of modern feminism over the immediate and direct consequences to a core constituency.

Of course the NAACP should be just as concerned about the plight of black women on campus as it is the plight of black men, but there’s an ancient method of squaring that circle. Due process gives an accuser the ability to state her case and the accused the right to effectively defend himself. And if any American organization should stand for due process, it’s the NAACP. The NAACP should change its position. Without civil liberties on campus, all too many black men will lose their civil rights.

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