Last week, the legal unraveling of the Obama-era campus sexual-assault guidelines entered a new phase. A student accused of sexual assault and subject to an unlawful, unconstitutional adjudication process filed a motion seeking class-action certification in his pre-existing lawsuit against Michigan State University. Rather than seeking to void the results only of his own flawed adjudication, he’s now seeking to void every adjudication where accused students were punished “without first being afforded a live hearing and opportunity for cross examination.”
This new motion comes after a wave of cases across the country that have invalidated and reversed the results of campus kangaroo courts — and these rulings are coming from judges across the political/judicial spectrum. In California, progressive state-court judges issued rulings that effectively halted proceedings in 75 campus sexual-misconduct cases, while California universities reworked their processes. Earlier this month, Amy Coney Barrett and the Seventh Circuit Court of Appeals joined dozens of other courts in ruling that university processes should face exacting legal scrutiny.
In fact, it’s hard to think of a modern legal policy more thoroughly repudiated than the Obama administration’s 2011 “Dear colleague” letter , which required every single public and private college that received federal funds (except for the few religious colleges that had opted out of Title IX) to adjudicate sexual-misconduct complaints under streamlined procedures that mandated lower burdens of proof, implemented a form of double jeopardy, and discouraged basic elements of due process, such as cross-examination.
Acting under intense internal and external pressure — and empowered by a #BelieveWomen ideology that dogmatically asserted that it is extremely rare for women to file false sexual-assault claims — universities encouraged women to report and prosecute cases under a system that was built from the ground up in defiance of generations of jurisprudence defining appropriate due process and in defiance of clear legal standards that prevent both anti-male and anti-female discrimination.
Much of the critique of university processes has focused on the plight of falsely accused students, and many of the cases contain facts so bizarre and extreme that it’s hard to believe that any fact-finder anywhere could have imposed punishment.
For example, in the Seventh Circuit case mentioned above, the accused student alleged that he was “not provided with any of the evidence on which decision-makers relied in determining his guilt and punishment,” his ex-girlfriend didn’t even appear before the hearing committee, he had “no opportunity to cross-examine” his accuser, the committee found his accuser credible even though it did not talk to her in person, the accuser did not even write her own statement or provide a sworn allegation, and the committee did not allow the accused student “to present any evidence, including witnesses.”
But as sexual-assault adjudications fall apart, it’s now clear that countless women have been victimized by the lawless Obama-era processes. The remedy for a lawless process is typically voiding the result of the adjudication, regardless of the veracity of the underlying claim. Even when a new proceeding is mandated, accusers are put through the immense challenge of an entirely new hearing. To put it bluntly, as courts properly sweep aside flawed adjudications, they are allowing guilty men to escape consequences for their actions.
That’s how law-enforcement scandals work. And make no mistake, the Title IX disaster is a form of law-enforcement scandal. When law enforcement cuts corners and violates the Constitution in its zeal to prosecute those it has already presumed to be guilty, courts can and do set aside convictions even when guilty men go free. There is no other effective remedy for systematic due-process violations. Perversely, that’s the dynamic the Obama administration helped create on campus. When it mandated campus prosecution without meaningful due process, it fatally undermined its own policy.
Due process, one of the greatest and most vital legal developments in the entire history of civilization, is not a mere inconvenience to be cast aside in the face of the ideological demands of strident activists. Basic elements — such as the right to see the evidence against you, the right to cross-examination, and the right to legal counsel — are indispensable to finding the facts when claims are disputed. They grant us a degree of confidence that real justice has been done.
While many statistics on campus sexual assault are flawed and exaggerated, there is a sexual-assault problem on college campuses. It’s heartbreaking to think that our university establishment, acting under federal mandates, has channeled real victims into a lawless process, ostensibly for their own good. It’s heartbreaking to realize, in spite of dozens upon dozens of adverse court decisions and in spite of proposed Trump-administration regulations that would mandate much-improved due-process protections, that young men and women are still being channeled into fundamentally flawed proceedings.
Until those flawed proceedings are eradicated once and for all, we will see all too many innocent students face punishment for alleged crimes that they did not commit. At the same time, as flawed adjudications are overturned en masse, guilty students will be relieved of responsibility for their terrible misdeeds. We’ll see more women face the trauma of relitigating the worst day of their lives through absolutely no fault of their own.
Make no mistake, due process is hard. It requires courage and resolve from litigants. It requires all parties to walk an arduous path to the truth. And even under the best of circumstances it’s imperfect. But there is no better way. It’s a deep shame that young women across this country have been taught otherwise. It’s a deep shame that many of these women will now see their abusers vindicated in part because their “allies” tossed aside centuries of hard-earned wisdom. They thought they knew better. But they did not. And we can now see that both accused and accusers have paid a steep price.
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